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[2012] ZALCCT 40
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City of Cape Town v SAMWU obo Sylvester and Others (C1148/2010) [2012] ZALCCT 40; [2013] 3 BLLR 267 (LC); (2013) 34 ILJ 1156 (LC) (7 September 2012)
9
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no:C1148/2010
In
the matter between:
CITY
OF CAPE TOWN
......................................................................................
Applicant
and
SAMWU
obo C SYLVESTER, M MNGOMENI &
W
AKIEMDIEN
......................................................................................
First
Respondent
ADVOCATE
COEN DE KOCK N.O.
................................................
Second
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
....................................................................
Third
Respondent
Heard:
23 May 2012
Delivered:
7 September 2012
Summary:
Review of arbitration award relating to promotion, approach to
remedies in such application discussed.
JUDGMENT
Rabkin-Naicker J
[1] This is an application to review
set aside an arbitration award in terms of section 145 (2) of the LRA
issued on 10 November
2010.
[2] During April 2009, the applicant
(the City) advertised 24 vacancies for the position of Senior Foreman
in its “Department:
Solid Waste Management Cleaning”.
[3] The individual respondents were
unsuccessful in their applications for the posts. The reasons given
for their failure to be
appointed were as follows:
3.1. MrMngomeni scored 9 out of a
possible score of 20 for his written assessment, whereas the
requirement was that he should score
a minimum of 12 out of 20 to be
considered for the post.
3.2. Mr Sylvester, scored the highest
in the written assessment, but was not considered for the post as he
had failed to meet the
minimum requirements regarding his
qualifications.
3.3. Mr Akiemdien also did not meet
the minimum qualification requirements and was not considered for the
post.
[4] By the time this matter came
before me, I was informed from the bar that as far as the latter two
employees were concerned,
the application had been withdrawn. A
letter handed up to me written by the attorney for the City informed
the Respondents’
attorneys of record that they would be advised
shortly as to “when the award in respect of Sylvester and
Akiemdien will be
implemented”.
[5] In terms of the award, the City
had been ordered to appoint all three individual employees to the
position of Senior Foreman
with effect from 1 April 2010 with back
pay, by no later than 1 December 2010.
[6] The second respondent (the
Commissioner) recorded in his award that Mr Fick (Fick) for the City
had conceded that Mngomeni complied
with the relevant qualifications
needed for the post, that he was currently acting in the post and had
been so acting for some
time already. The Commissonerstates at
paragraph 8 of the award:
“
It appears that MrMongomeni is
good enough to act in the position but not good enough to be
appointed permanently in the position.
There is a clear contradiction
in the actions of the respondent in this regard and I therefore have
no difficulty whatsoever in
finding that the non-appointment of
MrMngomeni amounted to an unfair labour practice”
[7] It was common cause that the City
had filled only 16 of the 24 vacancies for the post at the time of
the arbitration.
The grounds for review
[8] The main issues making the award
susceptible to review according to the City were as follows:
8.1. There was no evidence that the
City acted in breach of its own policies including its recruitment
and selection policy.
8.2. No evidence was tendered or
allegations made that the City acted in bad faith, with an improper
motive, malice or grossly unreasonably.
8.3. The award is devoid of reasoning
as to why acting in a position gives an employee the right to
permanent appointment.
8.4. The Commissioner overlooked the
correct legal position that the City as employer “has the
managerial prerogative to make
permanent appointments provided that
it does not act in bad faith, with an improper motive or with
malice”.
8.5. The Commissioner committed a
clear error of law in arrogating to himself the mantle of appointing
authority in his remedy.
Evaluation
[9] The City reliedon the case of
SAPS
V Security SectoralBargaining Council& Others
1
to submit that it is not the place of
an arbitrator to instruct an employer to promote a candidate into a
position. In that judgment,
the court per Basson J stated as follows:
“
The decision to promote or not
to promote falls within the managerial prerogative of the employer.
In the absence of gross unreasonabless
or bad faith or where the
decision relating to promotion is seriously flawed, the court and
arbitrator should not readily interfere
with the exercise of the
discretion…”
2
[10] The statement is made as one
reflecting a number of principles that have developed around
promotion disputes. One judgment
that considered these is that of
Arries v Commission for
Conciliation, Mediation and Arbitration & Others
3
which has been followed in a numberof
CCMA awards.
4
In that matter,Nel AJ approached the
question as follows:
“
What
MsArries sought to persuade the commissioner of was to interfere with
the merits of a discretion exercised by her employer
whether or not
to promote MsArries. I accordingly first considered how our courts
generally have approached the question of interfering
with a
discretion which has been exercised by another party. Then I looked
at how this has been approached in the employment jurisprudence.
A
consideration of this question discloses that there are limited
grounds on which an arbitrator, or a court, may interfere with
a
discretion which had been exercised by a party competent to exercise
that discretion. The reason for this is clearly that the
ambit of the
decision-making powers inherent in the exercising of a discretion by
a party, including the exercise of the discretion,
or managerial
prerogative, of an employer, ought not to be curtailed. It ought to
be interfered with only to the extent that it
can be demonstrated
that the discretion was not properly exercised. Interference with the
discretion of an employer is, in my view,
akin to the interference on
appeal with a discretion exercised by a court of law. In this regard
Holmes JA in Rondalia Insurance
Corp of SA Ltd v Page & others
1975 (1) SA 708
(A) at 720C, in relation to the exercise of a
discretion pertaining to costs, said that -
'a
Court making an order as to costs has a discretion to be exercised
judicially on a consideration of all the facts; and in essence
it is
a matter of fairness to both sides. The power of interference on
appeal is therefore limited to cases of vitiation by misdirection
or
irregularity, or the absence of grounds on which a court, acting
reasonably, could have made the order in question'.
Taking
this proposition further, and applying what our courts have said in
this regard to the employment field, I am of the view
that an
employee can only succeed in having the exercise of a discretion of
an employer 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 biased manner
(see Rex v Zackey
1945
AD 505
at 513; Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398; Ex
parte Neethling& others
1951 (4) SA 331
(A) at 335D; Benson v SA
Mutual Life Assurance Society
1986 (1) SA 776
(A) at 781J and 783C;
Shepstone H & Wylie & other v Geyser NO
1998 (3) SA 1036
(SCA) at 1045A).
This
approach, I believe, is consistent with the test applied by judges
sitting in the Labour Court and commissioners of the CCMA
when
considering the principles applicable to interference with an
employer's decision in relation to the promotion or non-promotion
of
employees.”
[11] Withrespect, the reasoning
employed as set out above does not reflect the distinction that must
be drawn between judicial and
administrative exercise of discretion.
It similarly assumes that an employer’s discretion when
deciding on whom to promote,
is made from the same cloth.
[12] In my judgment the approach
favored by the applicant in this matter, which treats the conduct of
selection of an employee by
an employer as akin to administrative
decision making, needs to be re-evaluated.Regard must be had to the
judgment in
Gcaba v Minister
for Safety and Security and others
5
in
whichthe ConstitutionalCourt held that employment and
labourrelationship issues did not generally amount to administrative
action
under PAJA: this was implicit in the constitutional
recognition of the distinct rights to fair labour practices in s 23
of the
Constitution (regulating the employment relationship between
employer and employee), and just administrative action in s 33 (which
dealt with the relationship between the bureaucracy and citizens).
The Court held that when the conduct of the State as employer
had no
direct consequences for other citizens, it did not amount to
administrative action.
6
On
this basis it found that the failure to promote and appoint the
appellant in that matter was not administrative action.
7
.
[13] The wholesale adoption of the
review tests, and notions of ‘setting aside’ an
employer’s decision and sending
it back to the employer for
decision anew, thus appears misplaced.Rather, the yardstick of
fairness to both parties, so successfully
applied by our tribunals
and courts, is in fact apposite. This does not mean that when a
selection process is irrational, it should
not be identified as such,
but that such irrationally goes to the issue of fairness. The clear
wording of section 186(2) of the
LRAsupports such an approach:
“
Unfair labour practice”
means any unfair act or omission that arises between an employer and
an
employee
involving
unfair conduct by the employer relating to the promotion ….”
[14] In this matter, the fairness
yardstick (although perhaps not clearly articulated as such) has been
used by the Commissioner.He
has found that in a situation where the
applicant’s post (in which he had been acting for five years)
remained vacant after
his non appointment, and where the City did not
proffer any rationale for the pass mark in respect of the written
assignment, nor
explain the method of allocation of marks, it had
been unfair not to appoint him.
[15] This court is able, with
reference to the record of the proceedings, to find other reasons
supporting the proposition that
an unfair labour practice has
beencommitted. As the LAC held in
Fidelity
Cash Management Service v CCMA &Others:
8
“
In
many cases the reasons which the commissioner gives for his decision,
finding or award will play a role in the subsequent assessment
of
whether or not such decision or finding is one that a reasonable
decision maker could or could not reach. However, other reasons
upon
which the commissioner did not rely to support his or her decision or
finding but which can render the decision reasonable
or unreasonable
can be taken into account. This would clearly be the case where the
commissioner gives reasons A, B and C in his
or her award but, when
one looks at the evidence and other material that was legitimately
before him or her, one finds that there
were reasons D, E and F upon
which he did not rely but could have relied which are enough to
sustain the decision.”
9
[14] Taking this approach, I note the
following evidence from the record:
Mngomenihas been acting in the post
he applied for the past five (5) years, and has been working for the
City for over 17 years
10 months.
The minimum requirement for
shortlisting for the post was Grade 10 (NQF Level 2) and at least 5
years relevant experience, plus
knowledge of relevant legislation
and safety standards. He pbtained Grade 10 in 1987.
Mngomeni who was born in 1966, was
not interviewed because he did not pass the written assessment i.e.
he scored 9 and was required
to score 12 points in order to pass.
The written assessment questions were
posed and answered in English, clearly not his first language.
In the document headed ‘Notice
of Appointment’ which consists of a report of the selection
process, one of the ‘Services’
of the selection process
is described as:
‘Description of assessment process
including how employment equity was considered (eg), interview,
roleplay, reference check’.
The
Description
reads: “240
applications were received from this 97 applicants were shortlisted
and were put through a technical assessment.
A competency assessment
and interview in which the following competencies were assessed:
experience, technical, and supervisory
aptitude was done for 52
applicants.
Under cross-examination about
Mnogomeni, Fick was asked by the trade union representative:
“shouldn’t the City have
recognized ‘the prior
learning’ given he had been working in this position for about
five years.” The reply
was that: “he was eliminated out
of the process- and sorry for the terminology-he failed the
assessment. He wasn’t
eliminated based on his qualification or
his experience. He was afforded the opportunity to do the
assessment.” The exchange
between the Commissioner and Fick of
the City in the record is as follows:
“
COMMISIONER:
But I’m just here to ensure that fairness prevails and that
people and however you deal with people obviously there’s
a
proper explanation for that. I must tell you, I mean, and we are on
record, I- if that’s common cause that MrNgomeni is
acting in
the position I cannot place much reliance on this written assessment.
If that’s the only reason that he was excluded.
MR FICK
: that was the only
reason because he met all the other requirements.
[14] The City has submitted before
court that should the award stand a ‘floodgates’
situation would prevail and the
City’s employees who number
some 25, 000, and have acted in a position, will have an unqualified
sense of entitlement to
permanent employment to a position when
advertised for filling.This argument cannot be sustained -each
application for promotion
must be assessed fairly, in its own right,
and in line with relevant prescripts, as well as in light of the
number of posts and
the applicants for those posts.
[15] In this case, the employer is
content to continue employing Mngomeni in an acting position, and to
pay him the applicable allowance,
after he was refused an interview
based on a written assessment.There was no evidence before the
arbitration as to how the written
assessment was marked or as to why
the applicable pass mark was chosen.Furthermore, there were not
enough successful applicants
to fill the vacant posts. Notions of
equity and sensitivity to redress appear to have been limited to a
formal reference to “employment
equity” in the
documentary report on the process.
[16] One further issue on which the
City based its review application needs to be addressed. It has
submitted that the following
renders the award reviewable: that
despite having the onus to prove that an unfair labour practice was
committed, none of the employees
gave evidence and the Commissioner
decided the matter based on the evidence given by the City’s
witness. Such an approach
it is argued, neglects the fact that the
onus in unfair labour practice disputes is on the applicant employee.
From the record
it is apparent that the employees did not give
evidence on the basis that the facts before the Commissioner were
common cause.
It was on the basis of such facts that the Commissioner
drew his conclusions of law and found that the failure to appoint the
employees
constituted an unfair labour practice.
[17] In all the circumstances, and
taking cognizance of the evidence before the Commissioner as well as
the relevant empowering
provision of the LRA that: “An
arbitrator appointed in terms of this Act may determine any unfair
labour practice dispute
referred to the arbitrator, on terms that the
arbitrator deems reasonable, which may include ordering
reinstatement, re-employment
or compensation”,
10
I
find that his award is not susceptible to review on the grounds
alleged. I therefore make the following order:
The application is dismissed;
The applicant is ordered to implement
the award in respect of MrMnogomeni within 15 days of this order;
The applicant is ordered to pay the
costs.
_________________________
H Rabkin-Naicker
Judge of the Labour Court
Appearances: On behalf of Applicant:
Adv G Leslie instructed by HeroldGie Attorneys
On behalf of Respondents: J. Whyte,
Cheadle Thompson and HaysomInc
1
[2010]
8 BLLR 892(LC)
2
At
897B-C
3
(
2006)
27 ILJ 2324 (LC)
4
For
example Msobo& IMATU
(2008) 29 OLJ 459(CCMA)
; Dedering and UNISA
(2008)29 ILJ 1312 (CCMA)
5
(2009)
30 ILJ 2623 (CC)
6
Paragraph
[64]
7
Paragraph
[68]
8
(2008)
29 ILJ 953 (LAC)
9
At
paragraph 102
10
Section
193(4) of the LRA