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[2013] ZALCJHB 92
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NEHAWU obo Gardee v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2723/2011) [2013] ZALCJHB 92 (25 January 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
case
no: JR 2723/2011
In the matter between:
NEHAWU
ON BEHALF OF GODRICH GARDEE
........................................
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL (GPSSBC)
..............................................
First Respondent
Z.S
SIBEKO N.O
........................................................................
Second
Respondent
MPUMALANGA
PROVINCIAL GOVERNMENT,
DEPARTMENT
OF CO-OPERATIVE GOVERNMENT
AND
TRADITIONAL AFFAIRS (COGTA)
.....................................
Third Respondent
MS.
HELEN SHUBE
....................................................................
Fourth
Respondent
Heard :
25 January 2013
Order : 25 January 2013
Summary :
Unfair labour practice. The failure of the third
respondent not to shortlist the applicant did not constitute an
unfair labour practice.
The applicant did not have the requisite
qualifications for the position. Application to review is dismissed.
No order as to costs.
judgment-reasons for order
AC BASSON J
Introduction
The applicant is NEHAWU obo Gordrich Gardee (hereinafter referred to
as “the applicant”).
This was an application to review and set aside an award by the
arbitrator in terms of which it was held that the third respondent
(the Department of Cooperative Governance and Traditional Affairs –
Mpumalanga – hereinafter referred to as “the
respondent”) did not commit an unfair labour practice by not
promoting the applicant to the position of Chief Director:
Corporate
Services.
Brief
exposition of the facts
The respondent advertised a post for Chief Director: Corporate
Services in 2009. The various requirements of the post are listed
in
the advertisement. Some of the more pertinent requirements are “an
appropriate
postgraduate
degree in
Human Resource
Management
”
1
and “extensive experience in Human resource and Labour
Relations matters and management functions”.
It was common cause that the applicant had previously applied for
the position of Chief Director: Corporate Services and that
he was
shortlisted. I will refer to this process as the “first
process”. During this first process the applicant
was
interviewed. He was, however not recommended for the post. It is
further common cause that the post was not filled at that
stage.
The post was re-advertised for the second time (“the second
process”) but this time around the applicant was not
shortlisted. The applicant challenged the fact that he was not
shortlisted for the post the second time and alleged that this
was
unfair. He claimed that he should be promoted to the advertised
position
The arbitrator analysed the evidence and concluded that it was clear
from the evidence that, although the applicant has experience
in
local government, he lacks qualifications in Human Resources and
Labour Relations. The arbitrator further noted that the applicant
had conceded during cross-examination that he worked in finance. In
respect of the successful candidate the arbitrator held that
she
meets the majority of the requirements for the post even though she
had less experience than that of the applicant in local
government.
She worked in the field as corporate services manager and has a
Human Resources qualification. The arbitrator further
noted that the
alleged comment by Mr. Mahlobo that the post was reserved for a
female was not corroborated by the evidence. The
arbitrator
concluded that on a balance of probabilities the applicant did not
meet the majority of the requirements for the post
and that the
respondent therefore did not commit an unfair labour practice.
In the founding affidavit the applicant claims that the arbitrator
committed various acts of gross irregularity and misconduct
with
regard to his duties and that there is no rational connection
between the evidence and the reasons given to justify the
award. The
applicant refers to numerous acts indicative of such gross
misconduct and irregularity.
Is this award reviewable?
The crux of the applicant’s case is the fact that he had met
the requirements of the post and therefore should have been
appointed in that position. It is further alleged in the founding
affidavit that the fourth respondent (the incumbent to the
disputed
position) did not have the necessary qualifications.
The parties have concluded a pre-trail minute at the commencement of
the arbitration proceedings. From these minutes it appears
that the
issue before the arbitrator was “whether the employee was
unfairly excluded from the short listing process in
the second
advertisement”.
Before I turn to the merits, it is important to point out that,
according to the advertisement that incumbent had to have an
appropriate
postgraduate
degree in
Human Resource
Management
. When the short listing was done, the panel was given
the profiles of the candidates who had applied in order to do a
preliminary
screening. The panel was not given the curriculum vitaes
of the applicants. One of the applicant’s other complaints was
the fact that the panel did not even look at the curriculum vitaes.
According to him this was unfair. I will return to this issue
hereinbelow.
In arriving at a conclusion, I had regard to the list of candidates
for the position that served before the panel and the profile
of
each candidate as displayed on this list. Each of the panellists had
to choose their four preferred candidates. It is clear
from the
evidence that none of the panellists chose the applicant. As already
pointed out the pre-selection was not done on the
basis of the
curriculum vitaes but on the basis of the profile list. Is it for
the Court to conclude that the respondent should
not have adopted
this method of selection? I am of the view that it is not. This was
the selection process adopted by the respondent
and there was
nothing before the arbitrator to show that this process was biased
or not
bona fide
. Furthermore, if regard is had to the
candidates on the profile list and particularly the profile of the
incumbent that appears
as number (19) on the list it is patently
clear that the incumbent has a post graduate degree whereas the
applicant does not
have such a qualification. The following
qualifications are listed against the incumbent’s profile:
“Bachelor of
Administration and Honours Degree: Human Resource
Management and Development and Diploma: Training and Development”.
In
contrast the applicant has no post graduate degree in Human
Resources. There is, in my view, no comparison between the two
candidates.
The incumbent meets the requirements by far.
I am on the evidence therefore satisfied that the arbitrator had
arrived at a reasonable conclusion namely that the applicant
did not
have the required qualifications. I can therefore find no reason to
interfere with this decision.
In the event the application to review is dismissed. There is no
order as to costs.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
For the Applicant : Mr. H Kgotleng of Kgotleng Attorneys
For the Respondent : Advocate T. Makhubele
Instructed by : The State Attorney, Pretoria.
.
1
Courts’
emphasis.