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[2011] ZALCD 16
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South African Post Office v Commission for Conciliation Mediation and Arbitration and Others (D796/09) [2011] ZALCD 16 (19 August 2011)
CELE J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN DURBAN
Not Reportable
Case No: D796/09
SA POST OFFICE
.............................................................................................
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
(CCMA)
...........................................
First
Respondent
SUBRAMONEY V N. O.
...................................................................
Second
Respondent
BUTHELEZI M N
.................................................................................
Third
Respondent
Date heard: 22 February
2011
Date Delivered: 19 August
2011
.
JUDGMENT
CELE J
Introduction
[1]
This
is an application in terms of section 145 (2) of the Labour Relations
Act (the LRA)
1
for the review and
setting aside of an arbitration award dated 23 August 2009 issued by
the second respondent as a commissioner
of the first respondent. The
third respondent in whose favour the award was issued opposed this
application.
Factual background
[2] The third respondent,
Ms Buthelezi is in the employ of the applicant in the position of an
Employee Assistance Program Practitioner
(the EAP). She commenced
that employment in August 2000.
[3] The applicant
internally advertised a position of Manager EAP/OD with the closing
date as 1 June 2007. Ms Buthelezi was among
the applicants that were
shortlisted and interviewed but no appointment was subsequently made
even though she scored the highest
marks among the interviewed
candidates. The applicant re-advertised the post both internally and
externally, with the closing date
then as 11 December 2007. Again Ms
Buthelezi applied, was shortlisted, interviewed but not appointed. In
July 2008, the applicant
announced the appointment of an external
candidate, Ms Zungu to the post.
[4] Ms Buthelezi lodged a
grievance due to her non appointment, alleging that she would have
been appointed to the position had
the applicant followed its
recruitment and selection policy. She alleged that her non
appointment was predicated on applicant’s
capricious and
unreasonable methods in executing the appointment. When the matter
could not be resolved by the parties, she referred
to conciliation an
unfair labour practice dispute pertaining to a failure by the
applicant to promote her. She referred it to arbitration
when
conciliation failed to resolve it.
[5] In February 2009, Ms
Zungu resigned from the post in question which remained vacant during
the arbitration hearing.
[6] The second respondent
was appointed to arbitrate the dispute and the chief findings of the
arbitration process are that:
The second interview was
a case study, testing three dimensions. Ms Buthelezi was tested on a
total of thirteen dimensions. While
all these dimensions might have
been important in determining the suitability of candidates, there
was no consistent application
of the tools used.
Ms Buthelezi was the
only candidate that met all the minimum requirements in terms of the
position and she was an internal candidate.
At the time of the
interview and arbitration, Ms Buthelezi occupied the position of an
EAP Practitioner, was on management development
plan, qualified in
terms of applicant’s employment equity plan and had undertaken
a one year course in OD, at the time
of the interview, which she had
since successfully completed.
She had ten years
experience in EAP, a Masters Degree in Social Work (specialised in
EAP) and studied HIV and AIDS at the Post
Office, which was directly
related to the position.
No one was called to
give evidence on how Ms Zungu came to be shortlisted.
No plausible explanation
was given of why the applicant had waived its own minimum
requirements and specifications in order to
make it possible to
shortlist and later appoint Ms Zungu to the post.
The applicant was
reluctant to provide the original information of the interview in
respect of candidate assessments and ratings
by the panel and their
scores. The applicant failed to produce written records of the
panellists’ assessments of each candidate,
how each candidate
was scored and the selectors’ deliberations and
recommendations. The applicant’s policy is that
recruitment
and selection should be done by using an objective, scientific,
consistent and auditable process. The records placed
at the
arbitration were not the originals and the names of the candidates
were changed.
Applicant’s view
that Ms Buthelezi was not appointed because she had performed poorly
at the interview or its claim that
Ms Zungu, possessed more of the
OD requirements and combined competencies that they were looking for
was without merit and stood
to be rejected. Ms Zungu only worked as
an EAP Practitioner for about a year and that too, not directly in
EAP but on a consultative
basis. That was not even half of the
relevant experience that the position required as a minimum. On the
other hand Ms Buthelezi
had been an EAP Practitioner since August
2000.
From the evidence at
arbitration and a comparison of qualifications and experience of Ms
Buthelezi and Ms Zungu, there was no
question that the applicant’s
decision to appoint Ms Zungu over Ms Buthelezi was irrational and
unfair. There was no compelling
evidence to support the applicant’s
view that Ms Buthelezi, who possessed the requisite skills,
experience and competency,
was the weaker candidate.
According to a vetting
process commissioned by the applicant. Ms Zungu had obtained her
matriculation certificate in 2007. That
questioned the period when
she could have obtained the rest of her post matriculation
qualifications and experience. None of
Ms Zungu’s post
matriculation qualifications had been verified by the relevant
issuing bodies, which was in direct breach
of the applicant’s
policy. The spelling of her name on her various degrees was not the
same as one in her identity document.
Clause 13 of applicant’s
Recruitment and Selection policy provides that internal job
applicants who do not meet all the
job requirements but show
potential to do so, within a reasonable period, might be appointed
on development. The applicant did
possess the key competencies and
requirements for the contested position. No compelling reason was
shown why the applicant did
not appoint her on that basis either.
Promotion is an
advancement to which employees could aspire but which they did not
have an automatic right to as it was the exclusive
prerogative of
the employer. However, in light of the applicant’s
unreasonable and unfair conduct, an incursion into this
exclusive
domain was both warranted and necessary.
Ms Buthelezi
successfully discharged the onus to prove that the conduct or
practice complained of did take place. The applicant
failed to
present evidence or to explain fully as to why Ms Buthelezi was not
appointed to the post and its defence that she
was an unsuitable
candidate and had not performed well at the interview could not be
sustained. The appointment of Ms Zungu was
seriously flawed and
irregular.
The failure by the
applicant to appoint Ms Buthelezi as a Manager EAP &OD
constituted an unfair labour practice.
[7] The second respondent
ordered the applicant to promote Ms Buthelezi to the contested
position with retrospective effect from
1 August 2008 and to pay her
such additional remuneration and benefits as would have accrued to
her had she been promoted to Manager
EAP &OD on 1 August 2008.
She ordered the applicant to pay costs.
Grounds for review
[8] Various grounds for
review were outlined by the applicant from paragraph 13 to 18 of its
founding affidavit. Neither a supplementary
nor a replying affidavit
was filed to supplement the review grounds. The submission, in a
nutshell, was that the:
second respondent
committed number of gross irregularities in the conduct of the
proceedings and
award was not one that a
reasonable decision maker could have arrived at.
[9] Various submissions
were traversed in support of the grounds for review which need not be
repeated here. Essentially the submissions
are that the second
respondent:
failed to apply the law
of evidence by placing the onus of proof in unfair labour practice
proceedings on the applicant and by
applying the incorrect
evidentiary standard of proof;
did not apply the
substantive law pertaining to the unfair labour practice relating to
promotion of employees by,
inter alia
, reviewing the
employer’s decision and decision making process, instead she
treated the proceedings as
de novo
hearing in which the issue
is the fairness of an employee’s dismissal ;
did not apply her mind
to all materially relevant factors,
inter alia,
in respect of
the applicant’s Recruitment and Selection policy, the vetting
process and by rejecting the panel’s
conclusion that Ms Zungu
possessed more of the OD requirements and combined competencies than
Ms Buthelezi;
disregarded materially
relevant factors and
did not weigh up all
materially relevant factors and issues,
and so deprived the
applicant of a fair hearing.
[10] After the applicant
had received the transcript of the arbitration proceedings,
it chose not to file a
supplementary affidavit to supplement the grounds of review with
reference to the record as it was entitled
to do. It further chose
not to file a replying affidavit to gainsay any of the evidence and
submissions made by Ms Buthelezi. This
application is therefore to be
considered with reference to the submissions made in the founding
affidavit and as elucidated in
the heads of argument. Any new grounds
of review which are outlined in the heads of argument but have not
been foreshadowed in
the founding affidavit will not be considered
for this application. It is trite that the applicant’s case
ought to have been
made in the founding affidavit, in the absence of
supplemented grounds, see
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau No and Others
2
.
[11] When the matter was
presented, Mr Ungerer for the applicant relied mainly on two review
grounds, namely that the second respondent:
did not apply the
substantive law pertaining to the unfair labour practice relating to
promotion of employees by
inter alia
, reviewing the
employer’s decision and decision making process, instead she
treated the proceedings as
de novo
hearing in which the issue
is the fairness of an employee’s dismissal and
did not apply her mind
to all materially relevant factors,
inter alia
by rejecting
the panel’s conclusion that Ms Zungu possessed more of the OD
requirements and combined competencies than
Ms Buthelezi.
[12] Ms Buthelezi’s
submissions in opposing this application are essentially that the key
findings by the second respondent
have not been shown to be visited
by any defect as alleged, are reasonable and have to be allowed to
stand. She pointed out that
the failure of the applicant to file a
supplementary affidavit demonstrating how the second respondent
committed the so-called
gross irregularities with reference to the
record should lead to the dismissal of this application. She said
that the prominent
feature of the applicant’s founding
affidavit was a nit picking of certain comments made by the second
respondent without
regard to the context within which such comments
were made.
Evaluation
[13] Ms Buthelezi bore
the onus of proving the unfair labour practice she complained of. The
analysis of the evidence by the second
respondent commences in
paragraph 56 of her award where she outlined the issue. Paragraphs 58
to 60 of the award clearly leave
no room that the second respondent
was conscious of where the onus of proof lay, namely with Ms
Buthelezi. She thereafter went
on to examine the evidence of the
applicant and went on to give a critic analysis thereof. This is a
clear indication that she
allowed the evidentiary burden of proof to
guide her in the assessment of various components of the evidential
material led by
the parties. Having first considered what Ms
Buthelezi said, the second respondent went on to check what the
applicant said in
answer to the allegations made against it. This is
a common feature through the arbitration award.
[14] Therefore, the
criticism levelled by the applicant on the issue of the onus and the
burden of proof is, in my finding, nothing
more than the nit picking
of certain comments made by the second respondent without regard to
the context within which such comments
were made, as described by Mr
Mgaga for Ms Buthelezi. Paragraph 6.13 of this judgment encapsulates
the second respondent’s
findings as an example of her approach
in the following terms:
“
Ms Buthelezi
successfully discharged the onus to prove that the conduct or
practice complained of did take place. The applicant
failed to
present evidence or explain fully as to why Ms Buthelezi was not
appointed to the post and its defence that she was an
unsuitable
candidate and had not performed well at the interview could not be
sustained. The appointment of Ms Zungu was seriously
flawed and
irregular”.
[15] It is difficult to
understand the submission by the applicant that the second respondent
did not apply the substantive law
pertaining to the unfair labour
practice relating to promotion of employees by reviewing the
employer’s decision and decision
making process and that
instead, she treated the proceedings as
de novo
hearing in
which the issue is the fairness of an employee’s dismissal. The
second respondent firstly examined whether Ms
Buthelezi met the
minimum requirement set by the applicant for the job. She then
examined whether there was evidence of relevant
experience Ms
Buthelezi had. She went on to compare the competencies of the two
candidates. She then checked if the applicant had
complied with its
own policies to the extent that such policy was applicable in various
considerations arising for a decision.
She proceeded to apply her
mind on all evidential material and other considerations and then
made her findings. Her chief findings
as summarised herein above
evince her proper approach to the matter. The fact that she never
referred to any cases as her guiding
legal principles did not detract
from the fact that she understood the applicable substantive law. Her
award is not the product
of speculation. She allowed herself to be
guided by the evidence which was led at arbitration.
[16] The allegations that
the second respondent did not apply her mind to all materially
relevant factors,
inter alia
, in respect of the applicant’s
Recruitment and Selection policy, the vetting process and by
rejecting the panel’s conclusion
that Ms Zungu possessed more
of the OD requirements and combined competencies than Ms Buthelezi,
are not supported by any reference
to the record of the proceedings.
Therein lies the difficulty with the criticism levelled against the
second respondent. Ms Buthelezi
was an internal candidate who acted
on the post in question. She had sufficient appropriate experience.
At the time of the interview,
she was furthering her studies in a
relevant field and thus showed that she qualified to be appointed “on
development”
in line with applicant’s policy. The second
respondent was entitled to consider this aspect as part of policy
considerations
of the applicant that was made available to her by the
parties, whether it was specifically raised by Ms Buthelezi or not. A
private
company was to do the vetting. Anything about the academic
qualifications had then to be left to that body so as to obviate any
subsequent dispute of facts on the issue.
[17] The award clearly
speaks to each of the issues raised by the applicant to the extent
that the only reasonable inference to
draw in the circumstances is
that the second respondent considered all relevant and material
issues fully and fairly as envisaged
in paragraph 268 in the case of
Sidumo
and Another v Rusternburg Platimun Mines Ltd and Others.
3
[18] The exercise of a
discretion of the applicant, as an employer can only be interfered
with if it is demonstrated that the discretion
was exercised
capriciously, or for insubstantial reasons, or based upon any wrong
principle or in a bias manner (see
Arries
Commission for Conciliation, Mediation and Arbitration and Others.
4
)
The second respondent was alive to this principle, hence her finding
in paragraph 66 of the award that:
“
Promotion is
an advancement to which employees could aspire but which they did not
have an automatic right to as it was the exclusive
prerogative of the
employer. However, in the light of the applicant’s unreasonable
and unfair conduct, an incursion into
this exclusive domain was both
warranted and necessary
.”
[19] The view I have
taken of this matter makes it unnecessary to traverse each and every
ground of review outlined by the applicant
in the founding affidavit.
I note that a failure to respond to the answering affidavit leaves
the issues raised by Ms Buthelezi
uncontested. She has challenged a
number of the issues raised by the applicant in the founding
affidavit.
[20] In the premises, and
having considered the law and fairness in respect of the costs order,
the following order is issued:
The review application
is dismissed.
The applicant to pay the
costs thereof.
_____________
Cele J.
Appearances:
For the applicant: R G
Ungerer Instructed by Sean Molony Attorneys
For the third
respondent: B Mgaga Instructed by Knight Turner Attorneys.
1
66
of 1995.
2
(2009)
30 ILJ 269 (LAC) at para 26.
3
[2007]
12 BLLR 1097
(CC).
4
(2006)
27 ILJ 2324 (LC) and cases therein cited
.
11