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[2012] ZALCJHB 121
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PSA obo Tlowana v MEC of Agriculture (JR868/10) [2012] ZALCJHB 121; (2012) 33 ILJ 2675 (LC) (24 February 2012)
7
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT: BRAAMFONTEIN
Case
No: JR868/10
Reportable
In
the matter between
PSA
obo M P TLOWANA
................................................................................
Applicant
and
MEC OF AGRICULTURE
............................................................................
Respondent
Heard: 24 February 2012
Delivered: 24 February 2012
Summary:
Review of an award - the third respondent seriously
misdirected himself and therefore committed a gross irregularity.
JUDGMENT
CELE J
[1] The applicant seeks to have an arbitration award dated 1 March
2010 issued by the third respondent under the auspices of the
second
respondent reviewed, set aside and substituted in terms of section
158(1) (g) of the Labour Relations Act
1
.
During the presentation of this matter, and in the event of the
applicant being successful, an option that the matter be remitted
to
the second respondent was tabled. It has been conceded by both
representatives that there is no longer any need for such remittal
by
this Court because all the evidence is before it.
[2] The first respondent opposed this application in its capacity as
the employer of the applicant’s member, that is Mr Tlowana
who
is the employee in this case and I will also be referring to him as
such. At the commencement of this hearing, a condonation
application
for the late filing of the employee’s answering affidavit was
dealt with and condonation was granted, albeit
reluctantly by Court.
Mr Tlowana commences employment with the first respondent some time
in 1998. In July 2005, he held the position
of an Assistant Director.
[3] On 22 July 2005, the first respondent advertised the position of
a Manager Cooperate Services: Sekhukhune. It was one of the
posts
advertised for five areas. The employee applied for the Sekhukhune
post together with a number of other people including
the fourth
respondent. In the list of recommendations, he was no. 1 while the
fourth respondent was no. 2. There was a differential
margin of about
2% between the two of them. The interviewing panel recommended his
appointment.
[4] The first respondent appointed the fourth respondent instead. The
employee was aggrieved by his non-appointment and assisted
by his
union, he referred an unfair labour practice dispute relating to
promotion. The matter was arbitrated upon and the award
was issued in
favour of the first respondent. The employee successfully applied for
the review and setting aside of that arbitration
award and the order
of this Court remitted the matter to the second respondent for a
de
novo
arbitration hearing before a different Commissioner or
Arbitrator. It so happened that I was the Judge seized with the
matter at
the time.
[5] In the meantime, the fourth respondent successfully applied for a
horizontal transfer from the contested post to another. The
first
respondent re-advertised the contested post which then had become
vacant. Again the employee applied for the post. He was
recommended
for and finally appointed at that post. He sought compensation for
the delayed appointment. He referred an unfair labour
practice
dispute relating to promotion for conciliation. Conciliation failed
to resolve it. He referred it to arbitration and he
then came before
the third respondent in this case. The third respondent in the
arbitration award issued, found no fault on the
part of the first
respondent and dismissed the referral.
[6] The applicant union has then assisted the employee in filing this
review application. A number of grounds for review have been
outlined
by the applicant as they appear on pages 281 onwards of the
pleadings. From these, it is clear that the attack here is
based on
the submission that the third respondent committed a gross
irregularity in the conduct of the arbitration proceedings
in that:
He misdirected himself in relation to the whole nature of the
inquiry or his duties connected there with.
He committed such a misdirection that culminates cumulatively to a
failure of justice or that is so fundamental as to vitiate
the
award.
He showed lack of understanding of the issues before him and as such
he could not identify where the issues lay.
The Arbitrator failed to deal with the substantive merits of the
dispute.
[7] I think for purposes of my judgment, I will just limit the probe
into these grounds. I have obviously applied my mind to the
rest of
the other considerations.
[8] During the arbitration hearing, the issues in dispute were wider
than they are now. The applicant had challenged the applicability
of
the Employment Equity Act (EEA)
2
in relation to the advertisement as the advertisement made no mention
of the applicability of the EEA. The Commissioner dealt with
all of
these issues. I need not revisited them and to the extent that any
attack is made on the applicability of the EEA, the decision
reached
by the third respondent appears to me to be reasonable and without a
defect.
[9] What remains for the decision of this Court is how the fourth
respondent was appointed, and therefore how the EEA was applied.
Evidence tendered by the employee was that the fourth respondent was
not equipped with the knowledge of the Persal system. The
Persal
system was listed as a requirement for any candidate who wanted to
apply for the post in question. The employee made an
allegation in
his testimony that the short-listing process involved the picking up
of people that were favoured even though they
did not meet the set
requirements.
[10] The issue before me is whether in appointing the fourth
respondent the first respondent acted rationally and applied its mind
appropriately to the considerations that were essential in applying
the provisions of the EEA. I must therefore at this stage express
my
gratitude to the submissions that have been made on behalf of the
applicant by Mr Desai. The heads of argument that have been
handed in
are very relevant to the issue or the probe in question. I am looking
at the decision in
Minister of Finance and Another v Van Heerden,
3
[where Moseneke J had the following to say:
‘
The provisions of section
9(2) do not prescribe such a necessity as test because remedial
measures must be constructed to protect
or advance a disadvantaged
group. They are not predicated on a necessity or purpose to prejudice
or penalise others, and so require
supporters of the measure to
establish that there is no less onerous way in which the remedial
objective may be achieved. The prejudice
that may arise is incidental
to but certainly not the target of remedial legislative choice.’
Further in that decision the following appears:
‘
This substantive notion
of equality recognises that besides uneven race, class or gender
attributes of our society there are other
levels and forms of social
differentiation and systematic under-privilege, which still persist.
The Constitution enjoins us to
dismantle them and prevent the
creation of new patents of disadvantage. It is, therefore, incumbent
on courts to scrutinise in
each equality claim the situation of the
complaints in society, their history and vulnerability, the history,
nature and purpose
of the discriminatory practice and whether it
ameliorates or adds to group disadvantage in real life context, in
order to determine
its fairness or otherwise in the light of values
of our Constitution.’
4
[Footnote omitted]
[11] What follows from this case is that when affirmative action is
applied one should not act irrationally as there are guiding
principles that must be followed. In
South African Police Services
v Zandberg,
5
Pillay, J had the following to say:
‘
Opening the post to all
groups does not mean that a higher standard applies when assessing
suitability and merits for posts for
non-designated groups than when
posts are restricted to designated groups. Applying a higher standard
for non-designated groups
implies that a lower standard is use to
appoint persons from designated groups. By implication less suitable
and less meritorious
people fill posts reserved for designated
groups. That cannot be the intention or the letter and spirit of the
EEA. Equality means
fairness and justice, to the candidate and to the
people they serve. Fairness and justice cannot prevail if candidates
who are
less than best, who are less suitable and less meritorious
are appointed.’
[11] In
Stoman v Minister of Safety and Security,
6
the following appears:
‘
I am respectfully in
agreement with the learned Judge in the
Public
Service Association
case
that the police or practice which can be regarded as haphazard,
random and overhasty, could hardly be described as measures
designated to achieve something... In order to honour constitutional
ideas and values, and to strive to truly move towards the
achievement
of a substantive equality, proper plans and programs must be designed
and put into place. Mere random and haphazard
discrimination would
achieve very little, if anything, and might be counter-productive.’
[12] There are various other relevant decisions that pertain to the
consideration that should be put in place when an affirmative
action
stance is taken. See in this respect
Department of Correctional
Services v Van Vuuren
[1999] 11 BLLR 1132.
[13] I return to the facts that are before me and in that process, I
need to investigate whether the appointment of the fourth
respondent
was or was not done in some haphazard, random or overly hasty manner.
It had become common cause that the fourth respondent
was not
equipped with one of the essential requirements that were listed in
the advertisement. It is clear therefore that even
the fact that she
was short-listed was an attribute belonging to a haphazard and random
manner. However, at the stage when the
Minister concerned had
indicated that she wanted to have affirmative action taken,
appropriate steps had to be taken to ensure
that rationality
prevailed in the selection of a proper candidate. The formula adopted
or proposed by the Minister after she had
deliberation with the panel
or panellists was that a female person who was listed as member 2 in
any of the five posts, who had
a differential of 2 or less than 2 had
to be preferred. That was not irrational. It was a formula that was
well conceived. The
problem is that someone who had no ability to
work with Persal system had escaped detection in an earlier stage.
The fourth respondent
was not supposed to have been short-listed in
the first place because she did not meet the very minimum
requirements.
[14] That had prejudicial effects on the member of the applicant. Had
she been discounted under the post at Sekhukhune, the applicant
stood
a great chance to be appointed. A female might have been found in
another of the five regions, such as in the Capricorn region
where
there is a female who is no. 4. It could probably happen that there
might have been a way of accommodating that female if
she had all the
prerequisites.
[15] Clearly therefore, when the third respondent was invited to
apply his mind to the material evidence that suggested that the
fourth respondent was not properly selected, the third respondent
seriously misdirected himself and therefore committed a gross
irregularity.
[16] The arbitration award in this case therefore cannot stand. I am
entitled to intervene by reviewing it and by setting it aside
and in
so doing I am called upon to substitute and say that the member of
the applicant, in this case Mr Tlowana, deserved to have
been
promoted from the date on which the fourth respondent was appointed.
The amount of compensation to which he is entitled is
the same as was
testified to during the arbitration hearing. I believe there is no
issue about that because this was never raised
as an issue. The
applicant has been successful. I do not want to dissuade people from
coming to this Court. I have no reasons to
award a costs order
against the first respondent, and therefore:
I order the first respondent to compensate Mr Tlowana to the extent
claimed by him.
The respondent has to pay interest but that interest must be paid
from today. So to the extent that the payment will remain
outstanding it must be calculated from today’s date.
The payment is to be made within 30 days from the date of this
order.
No costs order is made.
I remind the first respondent’s representative that there is a
costs order awarded against them for the condonation application.
________________
Cele J.
Judge of the Labour Court
APPERANCES:FOR
THE APPLICANT:
FOR
THE FIRST RESPONDENT:
1
Act
Number 66 of 1995.
2
55
of 1998.
3
[2004]
12 BLLR 1181
(CC) para 43.
4
Van
Heerden
at para 27.
5
[2010]
2 BLLR 194
(LC) at para at 198 E-G
6
2002
(3) SA 468
(TPD) at 480 A-D