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[2012] ZALCD 5
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Munsamy v SSSBC and Others (D437/09) [2012] ZALCD 5 (25 May 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case No: D437/09
In the matter between:-
CAPTAIN M. MUNSAMY
….......................................................................................
Applicant
and
SSSBC
…......................................................................................................
First
Respondent
A. DEYZEL N.O.
…..................................................................................
Second
Respondent
COMMISSIONER OF THE SAPS
…............................................................
Third
Respondent
SUPERINTENDENT J D BROWN
….........................................................
Fourth
Respondent
SUPERINTENDENT D M DUBAZANE
….....................................................
Fifth
Respondent
SUPERINTENDENT D M NGCOBO
…........................................................
Sixth
Respondent
Heard on: 6 September 2011
Delivered on: 25 May 2012
Summary: Review of award – in
an application for promotion the best rated candidate replaced on the
basis of the employment
equity plan. Supplementary affidavit not
filed. Applicant took extracts from the record and placed them in his
heads of argument
and added more grounds for review. Practice not
allowed.
JUDGMENT
CELE J
Introduction
[1] This is an application in terms of
section 158 (1) (g) of the Act
1
to review and set aside an arbitration
award dated 20 April 2009 issued by the second respondent under the
auspices of the first
respondent. The application was opposed by the
third respondent as the employer of the applicant in whose favour the
award was
issued.
Factual Background
[2] The third respondent advertised
various posts in its establishment that became vacant and funded in
2004. The applicant, a captain
on level 8, being eligible to apply
for promotion, applied
inter
alia
for post 1838 which
consisted of 3 posts, Superintendent level 9/10, SAPS Pinetown
Community Service Centre, (CSC) Kwa-Zulu Natal.
The applicant was at
the time stationed at the Durban South Area Inspectorate, Durban,
Kwa-Zulu Natal as Captain Level 8, responsible
for inspections and in
service training of
inter
alia
CSC personnel at
police stations in the Durban South area, including Pinetown. He was
short listed and eventually the number one
preferred candidate,
evaluated by an area evaluation panel under the chairperson Area
Commissioner Ramsaroop in terms of promotion
policy National
Instruction 1/2004, which was peremptory in nature.
[3] The Area Promotion Panel (the
panel) preferred three candidates, the applicant, the fourth and
sixth respondents for the three
advertised posts and recommended the
three to the next panel at a Provincial Panel, referred to as a
Provincial Ratification Committee
(Provincial committee).
[4] The panel had to consider the
demographical needs of the Durban South Area Business Unit Employment
Equity Plan as well as the
mini business unit at SAPS Pinetown,
whereby it had to balance representivity with service delivery, and
keeping in mind the critical
nature and importance of the post. In
its recommendation for appointment, the panel stated that:-
‘
Pinetown
has 1 African male as Relief Commander. Now Indian male, African
male, White male will complete representation of diverse
community in
Pinetown.’
[5] The panel submitted its
recommendation to the Provincial Committee. The recommendation was
sent back to the panel which resubmitted
it without alterations to
the Provincial Committee. The Provincial Committee considered the
recommendation and issued a remark
in the following terms:
‘
Post
no. 1838: Captain Munsamy (Applicant) has 14 years as an officer.
Pinetown has a high crime rate and the community are complaining.
Captain Munsamy replaced by No. 607817-6 Captain D.M Dubazane in
order to address representivity of African males on level 9 in
the
Pinetown station.’
[6] The Provincial Committee submitted
its recommendation, which then excluded the applicant, to the third
respondent and appointments
were made in terms of that
recommendation. The applicant felt aggrieved and he submitted a
grievance in terms of the South African
Police Service’s
Grievance Policy and the dispute was eventually arbitrated by the
second respondent on or about first October
2006. He issued an award
in the following terms:
‘
The
Respondent, the South African Police is ordered to compensate the
Applicant, Captain M. Munsamy, for not following a fair
procedure in
failing to promote him, by paying him an amount of R10 000.00.
The
amount of R10 000.00 referred to in paragraph (a) above is to be
paid to the Applicant within 14 days of the Respondent being
notified of this award.
No
order as to costs is made.’
[7] The applicant initiated the
present application. Later he joined the three successful candidates
and amended the order sought,
in the event the review application is
successful in the following terms:
‘ •
Promotion
to the rank of superintendent with fiscal and benefits retrospective
to 2006/08/01 in a post advantageous to both the
Applicant and the
3
rd
Respondent after fair and reasonable consultation. Fiscal to the
amount equivalent to the difference in salary between Applicant’s
level 8 salary and that of Superintendent on the 1
st
of August 2006.
•
Should
this not materialize, Applicant prays that the appointment post 1838
of superintendent Dubazane, Brown or Ngcobo be set aside
and that
Applicant be promoted to post 1838.
•
In
the event of only procedural unfairness, compensation of 12 months
salary scale.’
Grounds for review
[8] The applicant said that the second
respondent erred, misdirected himself or came to an indifferent
conclusion which a reasonable
decision-maker could not have come to
in relation to the evidence properly before him. He failed to apply
his mind objectively
and appropriately, misconducted himself,
committed a gross irregularity, handed down a finding which is not a
finding of an objective
and reasonable decision-maker or exceeded his
powers by acting unreasonably and unjustifiably, in that he:
afforded the third respondent to
search during the arbitration proceedings for an employment equity
plan which was not considered
by the Provincial Committee, in
changing and substituting the applicant with another candidate.
This conduct by the second
respondent was not only improper but
grossly and materially irregular.
admitted
viva voce
evidence
of the Provincial Committee wherein it was clear that the written
records were not only silent but reflected no reasoning
or
justification for such drastic intervention,
ultra vires
and
contrary to the National Instruction 1/2004.
failed to ascertain that the third
respondent failed to comply with its own Promotion Policy National
Instruction 1/2004 regarding
written records as no due process
documents, save for the arbitration bundle of the panel, were
discovered. It remained unclear
therefore how the Provincial
Committee applied its mind, evaluated, scored, justified or
provided rational reasoning and how
it substituted the
recommendation of the panel. The above decisions were not those
decisions reached by a reasonable decision-maker,
assessing whether
the third respondent’s conduct was according to its own
peremptory National Instruction 1/2004. In
doing so the second
respondent committed a reviewable irregularity.
failed to consider whether referring
the matter back to the panel was empowered by the Instruction
1/2004, and therefore whether
doing so was lawful, reasonable and
procedurally fair.
failed to consider the inconsistent
application of the employment equity plan of the third respondent.
failed to attach any weight to a PEP
rating of 4 while the fourth, fifth and sixth respondents only
received a rating of 3.
Nowhere did the second respondent evaluate
or attach any weight thereto, despite that being part of the
peremptory criteria
to be considered by the panel.
failed to consider that post 1838
was a non-designated post as advertised and therefore anybody could
apply for it. The second
respondent exceeded his powers by deciding
that a practice superseded a national instruction.
failed to consider the inherent core
requirements of post 1838, namely detaining suspects and prisoners
and responding to complaints
dispatched
via
10111 telephone
number and the CSC operating a police vehicle, which needed an able
person. The disability of the fourth respondent
was documented by
the panel as amputation of the right shoulder down. The Provincial
Committee did not refer anywhere to the
fourth and sixth respondent
and there was no indication why the applicant was substituted and
not the fourth or sixth respondents.
failed to see that no reference to
any substantial discussions in regard to service delivery balanced
with employment equity
was evident from the written minutes. There
was no reference made to any macro, micro, or mini employment plan.
failed to apply his mind to the fact
that the Provincial Committee considered the recommendations on 03
to 05 July 2006 and
yet signed their minutes on 30 November 2006,
long after the appointments were made. Such a discrepancy tainted a
due process
and is riddled with suspicions on whether the process
was objectively fair, reasonable and rational.
The chief findings of the second
respondent
[9] In his comprehensive award which
has 18 pages, the second respondent,
inter alia,
made the
following findings:
‘
[40]
Even where service delivery is of critical importance it would not
necessarily be unfair to place weight on the advancement
of
employment equity and to promote a less meritorious candidate. The
difference between the competences of the candidates might
be
relatively small; so small that the appointment of a less meritorious
candidate from a targeted group would not impact significantly
on
service delivery and such circumstances it would not be unfair if the
advancement of employment equity plays a role.
[41]
On the evidence of Commissioner Ngidi the promotion of employment
equity and the advancement of service delivery were of equal
importance when the appointments to Post 1838 were considered. There
was a drastic need to address the under-representation of
African
males on levels 9 and 10 in the relevant business unit i.e. the
province and there was likewise a need to address service
delivery at
the Pinetown police station where the crime rate was high and where
the community was complaining. In such cases it
would in my view not
be unfair to appoint a less meritorious candidate from a targeted
group even if there is a substantial difference
in the scores awarded
if such candidate can satisfactorily perform the functions applicable
to the post.
[42]
As I indicated in
Inspector S. Govender v South Police Service and
others
(Case No.PSSS 803-05/06 unreported) different factual
findings in different cases may be the result of different evidence
led in
the cases. An example of this is different evidence as to how
the first respondent applies its promotion policy and particularly
under what circumstances more weight is attached on employment equity
considerations than on service delivery and the merits of
the
candidates. Another example is the different evidence given by
representatives of the first respondent in response to allegations
that posts were either advertised as designated or non-designated
during the era governed by the National Instruction.
[43]
Despite different factual findings in previous cases, in the
Govender
case I found on the evidence presented in that case, that the
practice to advertise posts as designated or non-designated ceased
even before the National Instruction was issued. In the present case
Commissioner Ngidi testified that the practice was stopped
in 2002 or
2003 and posts were last advertised as designated posts at that time.
There was no evidence gainsaying his version and
the applicant`s case
that the practice still continued was only based on the fact of
clause 5 (3) of National Instruction still
provided that post may be
advertised as designated or non-designated and that the advertisement
referred to Post 1838 as a non-designated
post.
[45]
The issues that arose in the present matter in relation to the
substantive fairness of the decision not to appoint the applicant
to
Post 1838 are:-
(a)
Given the need to promote employment equity as well as to advance
service delivery and having particular regard to the extent
of the
needs and whether the appointed candidates could perform the
functions applicable to the posts whether it was unfair not
to
appoint the applicant and to appoint two African males and a disabled
white male to the three posts; and
(b)
Whether the first respondent acted inconsistently when it appointed
Indian males to other posts during the same promotion phase.
[46]
It was not possible to come to definite conclusions regarding the
ability of Ngcobo, Brown and Dubazana to perform the functions
applicable to the posts. This was mainly due to the non-disclosure or
non-availability of their applications, any record of the
interviews
held with them and any record of any findings by either the Area
Evaluation Panel or the Provincial Ratification Committee
relating to
their ability to perform the functions applicable to the post.
[47]
It was common cause that the Area Evaluation Panel, at least
initially, recommended the applicant as the most preferred candidate
for appointment to the posts. This was however not due to a finding
that Dubazana would not be able to perform the functions applicable
to the posts. It was probably based on a finding that the applicant
was the most meritorious candidate by reference to competence,
prior
learning training and development, and experience as well as on a
finding that his appointment would promote employment equity.
[48]
The applicant did not dispute the findings of the Area Evaluation
Panel to the effect that he was the most meritorious candidate
but
contended that the difference in scores awarded should have been
higher because he had more experience than the other candidates
and
more suitably qualified than them. It is not possible for me to find
that the applicant`s opinion in this regard is correct
because I did
not have insight in the applications of Ngcobo, Brown and Dubazana or
the record of the interviews held with them.
[49]
Commissioner Ngidi did not accept that the applicant was the most
suitable candidate by reference to competence, prior learning
training and development, and experience. He had some knowledge that
Dubazana was from the Pinetown CSC and that Ngcobo and Brown
were
from a CSC environment and that this favoured their appointment
irrespective of employment equity considerations. The applicant
was a
CSC commander for a three year period immediately prior to him
becoming an inspection officer whose duties inter alia entailed
the
inspection of CSC`s.There is no record any deliberations of the
Provincial Ratification Committee relating to the merit of
the
candidates recommended for appointment to the three posts and no
mention is made in the minutes that any doubt was expressed
about the
correctness of the scoring of the Area Evaluation Panel. The only
reason given for substituting the applicant with Dubazana
was that it
was done in order to address the representivity of African males on
the relevant post level. Commissioner Ngidi signed
the minutes and
one would have expected it to be corrected if it conveyed an
incorrect impression. There was no indication that
the Provincial
Ratification Committee perused the applications of the candidates or
any record of the interviews conducted by the
Area Evaluation Panel.
Despite Commissioner Ngidi`s evidence to the contrary I find that is
more probable than not that Provincial
Ratification Committee did not
take issue with the finding that the applicant was the most
meritorious candidate and that it only
interfered because they
disagreed with the finding that the applicant `s appointment would
promote employment equity as the minutes
of the Provincial
Ratification Committee reflects. The Area Evaluation Panel having
sight of the applications and having interviewed
the candidates was
in a position to make findings regarding the merits of the
candidates. There was no reliable evidence placed
before me to
indicate that the findings of the Area Evaluation Panel regarding the
merits of the candidates as reflected in the
scores were wrong and I
find that the applicant was a significantly more meritorious
candidate than Dubazana.
[50]
In terms of Clause 12(1) (d) of the National Instruction the
selection of a candidate had to be based on employment equity
in line
with the Employment Equity Plan of the relevant business unit. The
relevant business unit was the province and the national
demographics
had to be reflected amongst employees employed in the province .The
approach adopted by the Area Evaluation Panel
implied that it would
sufficiently promote employment equity if race groups were equally
represented amongst the employees functioning
as SCS relief
commanders. Adopting such an approach would mean that the Employment
Equity Plan would never be achieved as it required
that the national
demographics to be reflected in the province.
[51]
As provided in Clause 13 of the National Instruction the Provincial
Commissioner has to be satisfied that the promotion process
took
place in accordance with the instruction and if he approves a
recommendation which does not address representivity he must
motivate
it fully. Commissioner Ngidi was therefore obligated to interfere
when it became apparent that the Area Evaluation Panel
had adopted an
incorrect approach representivity.
[52]
On the probabilities it was the intervention of the Provincial
Ratification Panel that caused the applicant to be substituted
by
Dubazana. On the evidence of Commissioner Ngidi as supported by the
document that he referred to which contained the numerical
targets
for the Kwazulu-Natal business unit, African males were vastly under
represented on the relevant posts levels. African
males were to such
an extent under-represented and Indian males were to such an extent
over-represented that it was one of those
cases where it was not
unfair to appoint a less meritorious African male provided that such
African male could satisfactorily perform
the functions applicable to
the post. Commissioner Ngidi gave evidence to the effect that
Dubazana was from a CSC environment and
that he could perform the
function of CSC relief commander. There was no evidence that Dubazana
could not satisfactorily perform
the functions of CSC relief
commander.
[53]
If the scores awarded to candidates are considered Ngcobo and Brown
were more meritorious candidates than Dubazana. Ngcobo
was also an
African male and what was said about the representivity of African
males also applied in his case. Brown was a disabled
person and there
was a drastic need to address the representivity of the disabled.
There was no suggestion that Ngcobo and Brown
could not perform the
functions of a CSC relief commander satisfactorily.
[54]
In my view Commissioner Ngidi satisfactorily explained why discretion
was exercised in regard to Posts Nos. 1836 and 1814 to
attached
greater weight on service delivery and appointing Indians males to
the said posts did not constitute inconsistent application
of the
promotion policy.
[55]
Clause 9 (4) of the National Instruction provided that the
chairperson of an evaluation panel must ensure that written records
are kept of all the proceedings during the evaluation process. Such
records as were kept indicated that the Area Evaluation Panel
recommended the applicant as the first preferred candidate and that
he was substituted by Dubazana in order to promote representivity.
No
record was kept of the reasons why the promotion of representivity
titled (sic - should read: “tilted”) the scales
in favour
of appointing Dubazana. No record was kept of reasons why Ngcobo and
particularly Brown was in the end preferred above
applicant. There
was no record kept that Brown was disabled. The failure to keep a
record of such reasons probably created the
impression in the
applicant’s mind that his promotion was not properly and fairly
considered and caused him to spent time,
effort and to incur expenses
to pursue the dispute. The failure to keep proper records was
contrary to specific instructions and
in my consisted and (sic -
should read: “in my view constituted an”) unfair labour
practice relating to promotion.’
Grounds in opposition to the review
application
[10] The submission was that the
applicant filed a confused and defective amended notice of motion
where neither the founding nor
supporting supplementary affidavits
made out a case for the relief sought more specifically the promotion
to the rank of Superintendent.
[11] It was,
inter alia,
submitted further that the second respondent:-
insofar as failure to keep a proper
records of reasons are concerned, did in fact apply his mind and
consider such failure. This
was clearly evident from a reading of
paragraph 55 of the arbitration award where the arbitrator noted as
follows:-
‘
the
failure to keep proper records was contrary to specific instructions
and in my mind (sic) consisted an unfair labour practise
relating to
promotion’.
It is accordingly clear from the
award that the second respondent considered that the third
respondent did not follow a fair procedure
in failing to promote the
applicant. In this regard, evidence was provided during the
arbitration proceedings, which documentary
evidence, the second
respondent did properly consider, and which related to the National
Instruction 1/2004 relating to the promotion
of employees of the
service. In that regard, the second respondent correctly had
recourse to clause 13 of the National Instruction,
mores
specifically clause 13(5) which states that the national, provincial
or divisional commissioner may accept or reject the
findings and
recommendations of an evaluation panel. When the national,
provincial or divisional commissioner does not approve
a
recommendation of an evaluation panel, she/he must record the reason
for her/his decision in writing.
had correctly found that Commissioner
Ngidi was obliged to interfere when it became apparent that the
panel had adopted an incorrect
approach to representivity. It is
clear from a proper conspectus of the second respondent’s
award, that the second respondent
had properly applied his mind to
the National Instruction insofar as the employment equity plan of
the relevant business unit
was concerned. The second respondent had
correctly applied the provisions of the National Instruction, and in
that regard clause
12 (1) (d) of the said National Instruction,
stated that the selection of a candidate had to be based on an
employment equity
in line with the employment equity plan of the
relevant business unit. The relevant business unit was the province
and the national
demographics had to be reflected amongst employees
employed in the province.
had found that the approach adopted
by the panel meant that the employment equity plan would never be
achieved as it required
that the national demographics be reflected
in the province.
had accepted the evidence of
Commissioner Ngidi and the document which Commissioner Ngidi
referred to, revealed that the numerical
targets for KwaZulu-Natal
business were vastly under represented on the relevant post levels.
His evidence supported by the document
presented indicated that
African males were to such an extent under represented and Indian
males were to such an extent over
represented that it was one of
those cases where it was not unfair to appoint a less meritorious
African male provided that such
African male could satisfactorily
perform the functions applicable to the post. In this regard the
second respondent found that
there was no evidence that the fifth
respondent could not satisfactorily perform the functions of a CSC
Relief Commander.
the second respondent had made a
finding on the evidence of Commissioner Ngidi stating that
Commissioner Ngidi had satisfactorily
explained why a discretion was
exercised in regard to post numbers 1836 and 1814 and why greater
weight was attached on service
delivery and that appointing Indian
males to the said post did not constitute inconsistent application
of the promotion policy.
the only other issue that arose
related to the issue surrounding the employment equity plan and the
documentation in the form
of the employment equity plan.
Commissioner Ngidi had in fact provided evidence that the national
employment equity plan was
in fact taken into consideration. The
evidence during the arbitration proceedings had clearly revealed
that at the very least,
that the Provincial Committee had in fact
considered equity documents. This was confirmed by Commissioner
Ngidi when it was put
to him that his panel only focused on a
specific aspect of the plan which was the equity documents.
had correctly found that it was not
possible to draw inferences regarding the weight to be attached to
the advancement of employment
equity from the manner in which the
posts were advertised in the present case.
In any event Commissioner Ngidi did
not accept that the applicant was the most suitable candidate by
reference to competence,
prior learning training and development,
and he confirmed that by virtue of the fifth respondent being in the
Pinetown CSC environment,
that such favoured his appointment
irrespective of employment equity considerations. The applicant’s
claims regarding the
procedural fairness or otherwise of his non
appointment, and which related to the absence of records and
documentary evidence
in the form of employment equity plan, was in
fact dealt with by the second respondent.
The second respondent had accordingly
decided all issues raised by the applicant and the relevant facts in
dispute. The fact that
an arbitrator did not approach or analyse the
matter in the manner contemplated by one of the parties does not
serve to establish
that the issue was not determined.
Evaluation
[12] The applicant averred that the
second respondent erred, misdirected himself or came to an
indifferent conclusion which a reasonable
decision-maker could not
have come to in relation to the evidence properly before him. It was
contended that he failed to apply
his mind objectively and
appropriately, misconducted himself, committed a gross irregularity,
handed down a finding which was not
of an objective and reasonable
decision-maker or exceeded his powers by acting unreasonably and
unjustifiably in various ways.
[13] To the extent applicable here,
section 145 of the Act reads:
‘
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to
the
Labour Court for an order setting aside the arbitration award-
(2)
A defect referred to in subsection (1), means-
that
the Commissioner-
committed
misconduct in relation to the duties of the commissioner as an
arbitrator.
committed
a gross irregularity in the conduct of the arbitration proceedings
or
exceeded
the commissioner’s powers: or
that
an award has been improperly obtained.’
[14] While the applicant relied on
various grounds of review, the main attacks appear to be premised on
the allegations that the
second respondent committed a gross
irregularity and that the decision he reached was not one that a
reasonable-decision maker
could reach. As to a gross irregularity
Ngcobo J, as he then was, had the following to say,
in
Sidumo and Another v Rustenburg Platinum Mines LTD and Others
2
:-
‘
The
basic principle was laid down in the oft-quoted passage from
Ellis
v Morgan
3
where
the court said:
“
But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial,
such as,
for example, some high-handed or mistaken action which has
prevented
the aggrieved party from having his case fully and fairly
determined
.”’
(Emphasis added.)
[15] In the implementation of its
equity policy, the third respondent as an employer had to comply with
Section 20
of the
Employment Equity Act 1998
which states
inter
alia
that:-
A designated employer must prepare
and implement an employment equity plan which will achieve
reasonable progress towards employment
equity in that employer’s
work force.
An employment equity plan prepared in
terms of subsection (1) must state:-
the objectives to be achieved for
each year of the plan;
the affirmative action measures to
be implemented as required by
section 15(2)
;
where underrepresentation of people
from designated groups has been identified by the analysis, the
numerical goals to achieve
the equitable representation of suitable
qualified people from designated groups within each occupational
category and level
in the workforce, the timetable within which
this is to be achieved and the strategies intended to achieve those
goals;
the duration of the plan which may
not be shorter than one year or longer than five years;
the procedures that will be used to
monitor and evaluate the implementation of the plan and whether
reasonable progress is being
made towards implementing employment
equity.
the internal procedures to resolve
any dispute about the interpretation or implementation of the plan.
the persons in the work force,
including senior managers, responsible for monitoring and
implementing the plan, and
any other prescribed matter.
[16] The first ground of review is
that the second respondent afforded the third respondent to search
during the arbitration proceedings
for an employment equity plan
which was not considered by the Provincial Committee, in changing and
substituting the applicant
with another candidate. This conduct by
the second respondent was not only improper but grossly and
materially irregular. Throughout
the arbitration hearing, it remained
common cause between the parties that the third respondent had an
employment equity plan.
While the applicant complained about a
failure to produce the plan, he did not challenge its existence and
its implementation by
the third respondent. He was effectively
querying the compliance of the third respondent with
section 20
of
the
Employment Equity Act. Allowing
the third respondent to search
for the plan, in my view, was within the powers of the commissioner
in terms of
section 138
(1) of the Act. It was neither a defect as
defined nor unreasonable, in the circumstances. This case is
distinguishable from the
one where an employee challenged the actual
existence and or the applicability of an employment equity plan. The
evidence of Commissioner
Ngidi was clearly intended to cure the
defect in failing to produce the plan whose existence and application
was not being challenged.
How much of the contents of the plan he
knew was a matter for evidence and effective cross-examination.
Accordingly, this ground
must fail.
[17] The second ground is that the
second respondent admitted
viva voce
evidence of the
Provincial Committee wherein it was clear that the written records
were not only silent but reflected no reasoning
or justification for
such drastic intervention,
ultra vires
and contrary to the
National Instruction 1/2004. The applicant has, for a moment,
forgotten that an arbitration hearing is a
de novo
hearing
where parties are permitted to lead
viva voce
evidence, to the
extent that such evidential material is relevant. No doubt, in this
case such evidence was indeed relevant. The
next step was then to
assess it in light of all other evidence led. Accordingly, this
ground has no merits at all.
[18] The next issue turns on the
second respondent having allegedly failed to ascertain that the third
respondent failed to comply
with its own Promotion Policy National
Instruction 1/2004 regarding written records as no due process
documents, save for the arbitration
bundle of the panel, were
discovered. I am in agreement with the applicant when he said that it
remained unclear therefore how
the Provincial Committee applied its
mind, evaluated, scored, justified or provided rational reasoning and
how it substituted the
recommendation of the panel. The matter could
not end there though, as Commissioner Ngidi testified on this issue.
The third respondent’s
submissions are here appropriate when it
is said that insofar as failure to keep a proper record of reasons
was concerned, the
second respondent did in fact apply his mind and
he considered such failure. That was clearly evident from a reading
of paragraph
55 of the arbitration award where the second respondent
noted as follows:-
‘
the
failure to keep proper records was contrary to specific instructions
and in my consisted (sic – should read: “in
my view
constituted”) an unfair labour practise relating to promotion
’.
[19] The third respondent correctly
submitted that it was accordingly clear from the award that the
second respondent found that
the third respondent did not follow a
fair procedure in failing to promote the applicant. Evidence was
provided during the arbitration
proceedings, which documentary
evidence, the second respondent did properly consider, relative to
the National Instruction 1/2004
in relation to the promotion of
employees of the SAPS. The second respondent, I find, correctly had
recourse to clause 13 of the
National Instruction, more specifically
clause 13(5) which states that the national, provincial or divisional
commissioner may
accept or reject the findings and recommendations of
an evaluation panel. When the national, provincial or divisional
commissioner
does not approve a recommendation of an evaluation
panel, he or she must record the reason for his or her decision in
writing.
[20] Whether referring the matter back
to the panel was empowered by the Instruction 1/2004, and whether
doing so was therefore
lawful, reasonable and procedurally fair, now
falls to be considered. Clause 13 (6) of Instruction 1/2004 reads:
‘
13
(6) If the Provincial or Divisional Commissioner does not approve the
promotion of a recommended candidate, she or he may consult
with the
relevant Deputy Provincial Commissioner, Area Commissioner and in the
case of Head Office Divisions, with the relevant
Head of the
Component or the evaluation panel, if she or he deems it necessary
and either promote another candidate of her or his
choice from the
preference list submitted by the evaluation panel, or direct that the
post be re-advertised.’
[21] It is difficult to understand the
submission of the applicant that this clause prohibits referring the
matter back to the panel.
Consultation reasonably accommodates the
memorandum with the recommendation being remitted to the lower body
whence it came, with
a request to attend to any issue therein raised.
A decision thereafter taken, if any, is then endorsed in the same
document. This
is to obviate two memoranda being generated in respect
of the same issue with the risk that the original document may be
compromised.
No procedural unfairness has been shown by the applicant
to exist in this regard.
[22] The next probe is whether the
second respondent failed to consider the inconsistent application of
the employment equity plan
of the third respondent. This ground must
similarly fail for lack of substance. As the third respondent
correctly pointed out,
Commissioner Ngidi had in fact provided
evidence that the national employment equity plan was in fact taken
into consideration.
The evidence during the arbitration proceedings
had clearly revealed that at the very least, the Provincial Committee
had in fact
considered equity documents. This was confirmed by
Commissioner Ngidi when it was put to him that his panel only focused
on a specific
aspect of the plan which was the equity documents. The
second respondent dealt with it in paragraphs 50 to 52 of the award.
Paragraph
52, in my view, properly dealt with the evidence adduced at
the arbitration when he said:
‘
On
the probabilities it was the intervention of the Provincial
Ratification Panel that caused the applicant to be substituted by
Dubazana. On the evidence of Commissioner Ngidi as supported by the
document that he referred to which contained the numerical
targets
for the Kwazulu-Natal business unit, African males were vastly under
represented on the relevant posts levels. African
males were to such
an extent under-represented and Indian males were to such an extent
over-represented that it was one of those
cases where it was not
unfair to appoint a less meritorious African male provided that such
African male could satisfactorily perform
the functions applicable to
the post. Commissioner Ngidi gave evidence to the effect that
Dubazana was from a CSC environment and
that he could perform the
function of CSC relief commander. There was no evidence that Dubazana
could not satisfactorily perform
the functions of CSC relief
commander.
”
[23] In
Stoman
v Minister of Safety and Security et al
4
court held that:-
‘
Some
tension may in certain situations exist between ideals such as
efficiency and representivity and a balance then was to be struck.
Efficiency and representivity, or equality, should however, not be
viewed as separate competing or even opposing arms. They are
linked
and often independent. To allow equality or affirmative action
measures to play a role only where candidates otherwise have
the same
qualifications and merits, where there is virtually nothing to choose
between them, will not advance the ideal of equality
in the situation
where a society emerges from a history of unfair discriminations. The
advancement of equality is integrally part
of the consideration of
merits in such decision making process. The requirement of
rationality remains however and the appointment
of people who are
wholly unqualified or less than suitably qualified or incapable in
responsible positions cannot be justified.’
[24] In
Public
Service Association (PSA) o.b.o Karriem v. South African Police
Service (SAPS)
and
Another
,
5
the court referred to Carole Coopers
article in the Boundaries of Equality in Labour Law as follows:-
‘
It
is not just any person from a designated group who may be the
recipient of affirmative action measure, relating to appointment
or
promotion, the person must be suitably qualified.
The
suitably qualified requirement should stand as an answer to those
critics who hold that affirmative action necessarily means
that
individuals will be preferred because of their race, gender or
disability per se, without an assessment of their competencies.
It is
clear that the Act does not support tokenism, indeed the code says as
much, but requires that the appointee has the requisite
skills,
knowledge and qualifications to do the job or could acquire these in
a reasonable period. Nowhere does the Act state that
person from
designated groups have a pre-emptive right to appoint merely because
they are from the designated group.’
[25] Mr Dubazana could not reasonably
be described as a person who is wholly unqualified or less than
suitably qualified or incapable
in responsible positions and whose
appointment could not be justified. Nor is he just any person from a
designated group who might
have been the recipient of affirmative
action measure, relating to appointment or promotion. He is suitably
qualified and even
ranked number four after being similarly subjected
to the same scrutiny as the applicant. He was not just picked up from
nowhere.
[26] The second respondent is said to
have failed to attach any weight to a PEP rating of 4 while the
fourth, fifth and sixth respondents
only received a rating of 3.
Nowhere did the second respondent evaluate or attach any weight
thereto, despite that being part of
the peremptory criteria to be
considered by the panel. The applicant appears not to have understood
the award well. The second
respondent made an unassailable finding in
favour of the applicant in this regard when he said in paragraph 49:
‘
...There
was no indication that the Provincial Ratification Committee perused
the applications of the candidates or any record of
the interviews
conducted by the Area Evaluation Panel. Despite Commissioner Ngidi`s
evidence to the contrary I find that is more
probable than not that
Provincial Ratification Committee did not take issue with the finding
that
the
applicant was the most meritorious candidate
....
(My emphasis). There was no reliable evidence placed before me to
indicate that the findings of the Area Evaluation Panel regarding
the
merits of the candidates as reflected in the scores were wrong and I
find that
the
applicant was a significantly more meritorious candidate than
Dubazana
.’
(My emphasis).
[27] It was contended that the second
respondent failed to consider that post 1838 was a non-designated
post as advertised and therefore
anybody could apply for it. The
second respondent exceeded his powers by deciding that a practice
superseded a national instruction.
Both parties led evidence in
respect of this issue. The second respondent would have failed in his
duties as a commissioner had
he not made a finding in this regard.
How it is said he exceeded his powers is beyond comprehension as this
allegation was made
boldly and without substantiation. The fact that
the applicant did not agree with the finding made did not mean the
second respondent
exceeded his power. As already alluded to in
respect of a gross irregularity, an irregularity in proceedings does
not mean an incorrect
judgment.
[28] The second respondent alleged to
have failed to consider the inherent core requirements of post 1838,
namely detaining suspects
and prisoners and responding to complaints
dispatched via telephone number 10111 and the CSC operating a police
vehicle, which
needed an able person. In a quest to be promoted the
applicant seeks to undermine an action to bring about equal
opportunity in
a working environment by suggesting that disabled
police officers may never acquire a post level 9, through post 1838
due to its
inherent core requirement. Employers are obliged to
accommodate disabled personnel by adapting their working environment
accordingly.
This ground accordingly fails.
[29] The applicant contended that the
second respondent failed to see that no reference to any substantial
discussions in regard
to service delivery balanced with employment
equity was evident from the written minutes. There was no reference
made to any macro,
micro, or mini employment plan. This ground has no
merits. The second respondent aptly considered not only records but
viva voce
evidence led in this regard when he found in
paragraph 54 that:
‘
In
my view Commissioner Ngidi satisfactorily explained why discretion
was exercised in regard to Posts Nos. 1836 and 1814 to attached
greater weight on service delivery and appointing Indians males to
the said posts did not constitute inconsistent application of
the
promotion policy.’
[30] The second respondent was said to
have failed to apply his mind to the fact that the Provincial
Committee considered the recommendations
on 03 to 05 July 2006 and
yet signed their minutes on 30 November 2006, long after the
appointments were made. Such a discrepancy
tainted a due process and
is riddled with suspicions on whether the process was objectively
fair, reasonable and rational. Admittedly
this conduct on the part of
the third respondent was irregular. The failure to sign the minutes
tended to compromise the integrity
of the minutes. There was however
no suggestion that the minutes were probably interfered with.
Accordingly this discrepancy has
not been shown to have a prejudicial
effect on the applicant. It needs to be borne in mind that only a
gross irregularity and not
any irregularity attracts reviewability.
[31] Instead of fling a supplementary
affidavit and refer to those portions of the record which the
applicant sought to rely on,
the applicant elected to rely on the
founding affidavit. He then took extracts from the record and placed
them in his heads of
argument and added more grounds for review, such
as allegations of the second respondent being biased against him.
This practice
is not permissible as a case ought to be made in the
pleadings and the heads of argument are not such pleadings.
[32] As to the amount of compensation
the applicant was not compensated for his replacement when a
discretion was exercised in regard
to posts 1838 and 1814, by
attaching greater weight on service delivery and appointing Black
officers but compensation was clearly
directed at the failure of the
third respondent to keep proper records, thus creating an impression
in the mind of the applicant
that the matter was worth spending money
and time to pursue. The amount of compensation was in the
circumstances reasonable. I
have reflected on the law and fairness of
the costs order and consequently the order to issue is in the
following terms:
The review application in this matter
is dismissed on all outlined grounds;
No costs order is made.
___________
Cele J
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANT: Adv S van
Vollenhoven instructed by Nirashika Bramdeo Attorneys.
FOR THE THIRD RESPONDENT: Adv D Pillay
instructed by the State Attorney, KwaZulu-Natal.
1
The
Labour Relations Act Number 66 of 1995.
2
[2007]
12 BLLR 1097
(CC) at para 262.
3
Ellis
v Morgan; Ellis v Desai
1909 TS 576.
4
2002
(3) SA 468(T)
at 482 G-I.
5
(C435/04)
(2006) ZALC 39
(23 February 2006) at para 104.