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[2011] ZALCD 35
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Ferreira v General Public Service Sectoral Bargaining Council and Others (D 201/10) [2011] ZALCD 35 (25 August 2011)
REDDY AJ
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Not Reportable
CASE NO. D 201/10
In the matter between:
J FERREIRA
...........................................................................................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
.......................................................
First
Respondent
R LYSTER N.O
.....................................................................................
Second
Respondent
DEPATRMENT OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.......................................................
Third
Respondent
SA NTINGA
............................................................................................
Fourth
Respondent
DATE OF HEARD: 19 August 2011
DATE OF REASONS: 25 August 2011
______________________________________________________________________
JUDGMENT
REDDY AJ
Introduction
[1] This is an application in terms of
section 145 of the Labour Relations Act (the LRA)
1
to review and set aside or correct an
arbitration award dated 8 February 2010 under case number PSGA
422-07/08 handed down under
the auspices of the General Public
Service Sectoral Bargaining Council.
[2] The Applicant seeks to have the
award set aside and to remit the matter back to First Respondent for
a
de novo
arbitration hearing before another
commissioner due to non-availability of a proper record. The Third
Respondent in whose favour
the award was issued opposes this
application.
Factual background
[3] The Applicant is employed by the
Third Respondent as an administration officer. She applied in 2005
for the post of court manager,
Nqutu Magistrates’ Office, which
had a salary level 10 and a rank of assistant director attached to
it. The Applicant was
ranked first by the interview panel and the
Fourth Respondent was ranked second.
[4] The Fourth Respondent was promoted
to the post.
[5] The Applicant found out in 2007
that she had been ranked first and thereafter lodged an unfair labour
practice dispute in terms
of section 186 (2)(a) of the LRA, that is,
a dispute relating to alleged unfair conduct by the employer in
respect of a promotion.
Preliminary issue
Condonation for the late filing of
the opposing affidavit
[6] The Third Respondent applied for
condonation for the late filing of its opposing affidavit. The
affidavit was not attached to
a Notice of Motion. The Applicant’s
representative was obliged in consenting to the application being
heard without the Notice
of Motion.
The delay
[7] There is a dispute about the
length of the delay.
[8] The notice in terms of rule 7A (8)
of the Labour Court Rules and the record were served by registered
post on 20 August 2010.
[9] The Applicant submitted that even
if the state attorney (the Third Respondent’s representative)
had until the end of August
2010 before the
dies
for filing
the opposing affidavit began to run, it would still filed the
affidavit late. The affidavit was due, on the applicant’s
submission on or before 14 September 2010.
[10] The Third Respondent submitted
that it was directed by this Court to file an opposing affidavit
within fourteen days of 4 April
2011– being the date of the
directive. On this argument the opposing affidavit was due on or
before 18 April 2011.
[11] The opposing affidavit was
delivered in May 2011.
Reasons for the delay
[12] The Third Respondent submitted
that there were long delays in putting together a record of the
arbitration proceedings. It
is common cause that the First Respondent
did not submit the common bundle placed before the Second Respondent,
the tape recordings
of the proceedings or hand written notes of the
Second Respondent.
[13] On 28 January 2011, the
applicant’s attorney served the indexes to the various bundles
and the heads of argument. On
receipt of these, the state attorney
suggested in a letter dated 2 February 2011, that a meeting be held
with the Applicant’s
attorneys to reconstruct the record. The
Applicant’s attorney’s response was to decline the
invitation – more
on this later.
[14] The court directive was received
by the state attorney on 13 April 2011 and it had to consult with the
Third Respondent and
its Pretoria counterpart, who represented the
Third Respondent in the arbitration proceedings. The attorney who was
present during
the arbitration hearing, one Perumal, was on leave
until 4 May 2011 and due to her work commitments was only available
on 10 May
2011 to consult.
[15] Once instructions were received,
the opposing affidavit was drafted and signed on 19 May 2011, served
on the Applicant on 20
May 2011 and filed at Court on 23 May 2011.
[16] The Third Respondent submitted
that in light of the Court Directive, the delay was not excessive as
it amounted to just more
than a month.
Prospects of success
[17] The Third Respondent briefly
dealt with the various grounds of review and submitted that it had
excellent prospects of succeeding
in the main application. For the
reasons set out hereunder, it will be apparent that the Third
Respondent did indeed have excellent
prospects of success.
Prejudice
[18] It was submitted that not to
condone the late filing of the affidavit was more prejudicial to the
Third Respondent than to
the Applicant.
[19] Given that the only relevant
document in the record before me was the award, the interests of
justice required that I have
recourse to the pleadings and therefore,
the opposing affidavit, when hearing the Applicant’s grounds of
review.
[20] The explanation for the delay by
the Third Respondent has periods where nothing seems to have been
done by the state attorney,
however given the lack of a record and
the Third Respondent’s prospects of success, the interests of
justice require me to
condone the late filing of the opposing
affidavit.
Grounds of review
1.
The Second Respondent did not
adjourn the matter on 29 January 2010.
[21] The arbitration hearing was set
down in November 2009 for hearing on 29 January 2010. The Applicant’s
counsel was double-booked
for that day and attempts were made to have
the matter postponed. The First Respondent did not postpone the
matter.
[22] On the day in question, the
Applicant requested that the matter stand down for an hour, which was
granted, to allow her counsel
to adjourn his other matter and
thereafter attend her arbitration hearing. The Applicant’s
counsel did not appear an hour
later and the arbitration hearing
proceeded in his absence.
[23] It is not recorded in the award
that the Applicant requested that the matter be adjourned. The Third
Respondent in its opposing
affidavit confirms that no application for
an adjournment was made by the Applicant.
[24] Despite the Applicant not
applying for an adjournment, the Second Respondent did apply his mind
to an adjournment of the proceedings.
He recorded in the award that
the matter had been adjourned on many occasions in the past, the
Applicant had her attorney present
and that it was in the interests
of justice that the matter continues.
[25] The Applicant submits that her
attorney was inexperienced and she (the Applicant) did not prepare
“comprehensively”
with her attorney. It is claimed by the
Applicant, that her attorney’s inexperience was obvious as her
attorney did not lead
her in chief or cross -examine the Third
Respondent’s witnesses.
[26] The Second Respondent recorded in
his award that “Applicant’s attorney, for reasons which
were not fully explained,
took no part in the proceedings, and did
not lead the Applicant in chief, and did not undertake any
cross-examination of Respondent’s
witnesses; thathe elicited
all Applicant’s evidence from her, and assisted her in
cross-examination of the Respondent’s
witnesses.”
[27] The Applicant elected her legal
representatives. That they were either not available or not able to
represent her and she chose
to continue being represented by them is
not a reviewable irregularity.
[28] Further the Applicant had from
November 2009 to engage another counsel or another attorney who would
have been prepared to
represent her on the day in question. She did
not do so.
[29] I accordingly find that the
Second Respondent did not commit a reviewable irregularity in not
adjourning the matter.
2.
The Third Respondent did not
consider the Applicant’s written argument
[30] The Second Respondent recorded in
the award that the argument submitted by the Applicant’s
counsel
“
contained
references to documentary evidence which had never been presented at
the arbitration, and which in terms of the fundamental
principles
relating to the admissibility of evidence, I cannot take any account
of.”
As the Second Respondent was bound to
determine the matter on the evidence before him he could not consider
argument on evidence
which was not placed before him. I accordingly
find that the Second Respondent did not commit a reviewable
irregularity.
3. The Second Respondent did not
make a finding on procedural unfairness
[31] The Applicant did not record in
her referrals to conciliation and arbitration any procedural
irregularities. From the award,
there is no record of any procedural
issues being raised by the Applicant.
[32] In her replying affidavit, the
Applicant records her procedural grievances as follows:
“
No
documentary proof existed or has been tendered how Mr Manual applied
his mind, what he considered, what weight he attached to
service
delivery and how he balanced equity with service delivery in
promoting the Fourth Respondent to the post.”
[33] These are issues relating to the
substantive fairness of the promotion. They do not in any way imply
any procedural irregularities
such as the Applicant was not afforded
a proper interview or that she had to answer questions that were
different from other applicants
for the post or that a different
panel interviewed her or that she could not attend the interview and
was not afforded another
opportunity to be interviewed or that the
panel was not qualified to conduct the interviews.
[34] Further, the Applicant does not
submit that she presented evidence at the arbitration hearing that
the promotion of the incumbent
to the post would have compromised
service delivery. I must conclude that such evidence was not
presented.
[35] I find that the Applicant did not
raise any procedural issues for the Second Respondent to decide and
that he did not commit
a reviewable irregularity in this regard.
The Applicant’s evidence was
unchallenged and the Second Respondent did not make a finding in
this regard
[36] It is recorded in the award that
the Applicant’s evidence was challenged when it was put to her
in cross-examination
that:
she had no expectation of being
appointed merely because she was recommended and
she was not appointed because of
employment equity;
white women were over-represented in
her occupational class;
[37] It is clear that the Second
Respondent found that the Third Respondent was bound by principles of
employment equity and it
had to apply the policy nationally and
provincially. The Applicant’s claim to the promotion merely
because she was the recommended
candidate does not take into account
principles of equity at the national and provincial level and the
relief she sought could
not be supported by the evidence before him.
[38] This ground of review must also
fail.
The Second Respondent could not
have reached the conclusion that he did had he considered that the
Applicant only conceded that
the Third Respondent could change the
recommendation if it had
:
applied its mind fairly, objectively
and rationally;
applied proper reasoning,
justification and rationaliity;
a proper and valid employment equity
plan;
consistently applied the plan;
balanced efficiency with
representivity;
properly analysed the national,
provincial and office plans.
There was no written proof of how
the Third Respondent applied its mind.
[39] The Third Respondent led the
evidence of two witnesses, one Chirwa, who had drafted the employment
equity plan and one Manual,
who had the power to accept or reject the
recommendations of the selection panel.
[40] Chriwa testified that the
selection panel was obliged to implement the plan and consider the
office in question and the national
and provincial demographics.
[41] The Applicant’s only
challenge was that if he considered the office in question she
qualified in terms of race and gender.
His response was that in terms
of the national and provincial demographics this was not so.
[42] The Applicant did not challenge
the employment equity plan.
[43] Manual testified that he did not
accept the recommendation of the panel that the Applicant be promoted
as this was contrary
to the employment equity requirements. Apart
from challenging that if the office itself was the only criterion,
the Applicant would
have qualified in terms of race and gender (which
Manual conceded) no other challenge was put to the witness. It was
not put to
him in cross-examination that his decision was arrived at
in an arbitrary, unfair and inconsistent manner.
[44] The award and the opposing
affidavit do not record the Applicant putting questions in terms (a)
to (f) above to the Third Respondent’s
witnesses. One would
expect that the Applicant would have recorded these questions and the
answers in response had she done so.
Given that no mechanical or
manuscript record of the proceedings exist, it would have been
imperative for the Applicant to submit
her notes in this regard. As
her attorney did not assist her during evidence, the least she could
have done was to record the evidence.
As no concurrent notes from the
attorney or the Applicant have been submitted, I must conclude that
these issues were not placed
before the second respondent. I must
therefore accept the award and the opposing affidavit as being
correct in not recording these
issues as being presented by the
Applicant.
The common bundle that was before
the Second Respondent was dissected by the Applicant’s written
argument but the written
argument was not considered by the Second
Respondent
.
[45] This ground is dealt with above
and I find that the Second Respondent reasonably dealt with the issue
of the written argument.
7
.
It was unchallenged that
even if her race group was over represented the Third Respondent
could still appoint her at the office
level.
[46] The Second Respondent recorded
that Manual’s concession in this regard was limited to office
level only and did not include
a consideration of the national and
provincial demographics.
[47] The Applicant’s only
challenge to the application of equity was that, if it was applied at
the office level, she should
have been appointed. She did not in any
way challenge the application of the policy nationally or
provincially, which is where
the justification for her not being
promoted lies. I must therefore conclude that the Second Respondent
correctly found against
her on these grounds.
No reliance was placed on the fact
that Mr Hartzer, the Provincial Head of Human Resources, sat on the
panel and recommended the
Applicant for the post.
[49] The Applicant’s
representative, during his address to Court, amended this submission
to reflect that it was the human
resource department and not Hartzer
that sat on the panel.
[50] It is disputed by the Third
Respondent that this evidence was placed before the Second
Respondent. This also does not appear
from the award itself. This
ground also fails.
The Second Respondent erred in not
finding that the Third Respondent’s actions were invalid,
unfair, unreasonable and unjustifiable
.
[51] This is not evident from the
award and is disputed by the Third Respondent.
[52] The exercise of the Third
Respondent’s discretion as employer can only be interfered with
if it is demonstrated that
the discretion was exercised capriciously,
in a biased manner, or for insubstantial reasons or based upon any
wrong principle.
See in this
Arries
v Commission for Conciliation, Meditation and Arbitration and
Others.
2
The evidence before the Second
Respondent did not require him to interfere with the Third
Respondent’s discretion.
10.
The Second Respondent’s
decision that the Third Respondent did not act incorrectly,
arbitrarily or unfairly was not corroborated
by the evidence.
[53] The Second Respondent recorded in
the award that the Third Respondent’s witnesses referred to
policies and documents
during their evidence. He also recorded that
there was no challenge to the documents or as recorded previously in
this judgement.
[54] I find that the Second Respondent
assisted the Applicant as best he could without creating a suspicion
of bias in favour of
the Applicant during the proceedings.
[55] The award speaks to each issue
raised by the Applicant and the only inference to draw is that the
Second Respondent considered
all the relevant and material issues
fully and fairly as envisaged in paragraph 268 in the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
3
11.
No
record
[56] The Applicant submitted that as
no record exists, the matter must be remitted for a hearing
de
novo.
[57] The history of this application
shows that the Applicant’s attorney could have put together a
better record than she
did had she met with the state attorney and
attempted a reconstruction of the record or had she taken any notes
during the arbitration
proceedings.
[58] As recorded earlier, the state
attorney invited the Applicant’s attorney in February 2011 to
meet to reconstruct the
record. In her letter dated 11 February 2011,
the Applicant’s attorney stated that there would be no purpose
in doing so
as the Second Respondent would “certainly”
not certify a reconstruction which has little or no prospect of
validity
or agreement on the contents as delivered at the
arbitration.
[59] What led the Applicant’s
attorney to believe that an attempt at reconstruction could not be
agreed or that the resulting
record would be invalid is not
explained. It certainly appears to be a premature attitude to have
adopted when the parties had
not even met on the issue of
reconstruction.
[60] The Applicant’s attorney
stated further in her response that to set a date for the meeting
with the consent of all the
“stakeholders” would be
“another difficult hurdle to overcome”.
[61] It is also not recorded in the
papers who the stakeholders, that the attorney refers to, were. Apart
from the attorneys involved,
(and perhaps the Applicant) I see no
reason for any other person to have attended a meeting to reconstruct
a record.
[62] Why it would have been difficult
to arrange a meeting is not elaborated in the papers and does not
make any sense, especially
in light of the Applicant being
dominus
litis
.
[63] What is also curious about the
issue of the record is that this Court issued a notice to the
Applicant’s attorney on
4 June 2010 that the record had been
delivered by the First Respondent. On 28 July 2010, the Applicant’s
attorney was advised
by this Court that the record had not been
uplifted by the Applicant. The Applicant’s attorney’s
response on 4 August
2010 was to write to the First Respondent (and
copying the Labour Court and the state attorney) requesting the hand
written notes
of the Second Respondent.
[64] It became apparent to the
Applicant’s attorney at some point that written notes or
mechanical recordings of the proceedings
did not exist and that the
Second Respondent’s copy of the combined bundle could not be
found.
[65] The record consists of the
contents of the First Respondent’s file (largely notices of set
down and attendance registers)
and the award, and was filed in August
2010.
[66] When one looks at the various
grounds of review raised by the Applicant, it is clear that the
record that was filed would not
be of significant assistance to this
Court when hearing the review application - which is all the more
reason for the Applicant’s
attorney to have accepted the
invitation by the state attorney to attempt a reconstruction of the
record. It emerged during the
address by the parties that each
representative had some portion of the combined bundle in its
possession. To my mind, it was imperative
that the parties had to
meet to reconstruct the record as best they could so that the matter
could reach finality as soon as possible
– a long time had
passed since the promotion occurred in 2005.
[67] Further, the Applicant or her
attorney did not make available any notes that they may have taken
during the arbitration proceedings.
[68] The Applicant appears to lack
bona fides
. It is not for the Applicant to bring a review
application, not comply with the rules of court and stymie a proper
hearing of the
issues by not producing the record, and to
opportunistically use the lack of a proper record as a ground of
review.
[69] I further find that to remit the
matter for a hearing
de novo
is not in accordance with the
objects of the LRA. The promotion occurred in 2005. It is now six
years later. The award, the pleadings
and the parties’
addresses were sufficient for me to deal with this application and to
finalise the matter than to remit
it for another hearing.
[70] The Second Respondent did not
commit any reviewable irregularity. He dealt with the matter fairly,
competently and objectively.
He decided the matter on the evidence
before him and went so far as to assist the Applicant as if she were
not represented. The
decision reached by him is a decision that a
reasonable commissioner would have reached.
[71] Having considered the pleadings
and the argument, I exercise my discretion to make the following
order:
The late filing of the Third
Respondent’s opposing affidavit is condoned,
The review application is dismissed;
There is no order as to costs.
______________
Reddy AJ
Appearances:
1. For the applicant: S van
Vollenhoven instructed by Nirashieka Bramdeo Attorneys
2. For the Respondent: M Moodley
instructed by the state attorney
1
66
of 1995.
2
(2006
27 ILJ 2324 (LC)..
3
[2007]
12 BLLR 1097
(CC).
11