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[2013] ZALCJHB 153
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Transnet Ltd v Transnet Bargaining Council and Others (JR 187/10) [2013] ZALCJHB 153 (30 April 2013)
9
REPUBLIC OF
SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: JR187/2010
Reportable
In the matter between
TRANSNET LIMITED
.......................................................................................
Applicant
and
TRANSNET BARGAINING COUNCIL
...............................................
First
Respondent
ADV M. DOLLIE, NO
......................................................................
Second
Respondent
M. LUUS
.............................................................................................
Third
Respondent
UASA-THE UNION
..........................................................................
Fourth
Respondent
Heard: 26 April 2013
Delivered: 30 April 2013
Summary: Review of
award - unfair labour practice not committed by a failure to
shortlist employee for an interview in a promotional
post –
pre-arbitration agreement narrowed issues with a binding effect –
commissioner failed to discharge his duties
.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Cele
J
Introduction
[1] This judgment
follows an order in a review application after the matter was heard
on 26 April 2013 with reasons having to follow.
This was an
application in terms of section 158 (1) (g) of the Act
1
in which the
applicant sought to have the arbitration award issued by the second
respondent on 11 December 2009 reviewed and set
aside. The
application was opposed by the third respondent, Mr Luus in his
capacity as the employee of the applicant. The assailed
award was
issued in his favour.
Background Facts
[2] Mr Luus was in the employment of
the applicant. The applicant advertised a post of Manager: Service
Codes, a senior management
level 109 position Mr Luus showed interest
in the post by lodging his application but he was not short listed.
His colleague Mr
Rakolojane was the successful candidate. Mr Luus
referred a dispute of unfair labour practice to the first respondent
as a result
of the applicant deciding not to shortlist him for the
position. The dispute was not capable of resolution at conciliation
and
he referred it to arbitration. The second respondent was
appointed to arbitrate it.
[3] The second respondent was
requested to decide whether the applicant in this matter erred in not
inviting Mr Luus to the interview
for the contested position and
whether that failure constituted an unfair labour practice in terms
of section 186(2)(a) of the
Act. Parties held a pre-arbitration
conference, agreed on common cause issues and listed them in a
pre-arbitration minute which
they produced and filed for the
arbitration hearing. In terms of the minute the following issues were
agreed upon:
The advertisement for the position
was what it purported to be and the requirements in terms of the
advertisement were essential
for the position;
Mr Luus’ application for the
position did indeed list the necessary attributes that had been
required for the position.
He was the only candidate in possession
of a train operation certificate that had applied for that position;
Mr Luus attended managerial skills
training and he received a certificate for such training while he
was the Chief Administration
Officer;
He achieved a score of 3.3 in a
management proficiency evaluation and the required benchmark for the
position was 2.9 or 2.6;
Mr Luus, by virtue of his role as a
manager, was performing some of the functions contained in the
advertisement;
He was appointed as a Junior Manager:
Service Codes on 1 July 2007 three months prior to the advertisement
for the position. He
acted in the position for a period of three
months prior to his appointment as a Junior Manager: Service Codes;
He reported to the successful
candidate, Mr Rakolojane amongst other line managers in his position
as a Chief Administration Officer
and he had been working with Mr
Rakolojane in the same environment since 2004;
At a talent forum held in April 2008
for managers the feedback that was given to Mr Luus was that he
needed managerial intervention;
He was advised that the reason why he
was not appointed as the Senior Manager: Service Codes and Design
was due to the fact that
he had lacked managerial skills;
The advertisement for the position
did not require managerial competency assessment as a prerequisite
for the position;
All short listed applicants were in
possession of a tertiary qualification which the applicant did not
have.
[4] The second respondent described
the relief sought by Mr Luus as a placement on the 1
st
notch of the 109 level salary band, alternatively any other relief
that might be determined to be fair under the circumstances.
[5] At the arbitration hearing Mr Luus
had to prove the unfair labour practice complained of. He said that
he was appointed into
the office in 1999 when the office started and
he was the person who implemented the service code design, getting it
off the ground.
He was the only one who trained the sales and
marketing personnel in respect of the service code designs. He
regarded himself as
having very good experience in respect of the
system used. In respect of the key accountabilities he said that he
had a few thousand
service codes which were divided up into various
portfolios under his control which had to look after mainline
passenger transport,
coal transport and local line transport. He said
that his was a hands on environment regarding the day to day
activities with the
system on the line without a delay even on the
face of problems.
[6] Of the five candidates invited for
the interview, the only person who worked in the office was Mr
Rakolojane. None of the other
people had experience in the service
code design and indebt knowledge of the system. Three of them being
Patience Dlamini, Albert
Matebane and Dunzane Dungale had never
worked in the service code design environment. Mr Rakolojane had been
acting in the position
for only three months and he had only five
years of service in the 610 level which was the same level as of Mr
Luus.
[7] In respect of knowledge and skills
Mr Luus said that he was experienced in yard, transportation of
hazardous material and was
the only one qualified in train
operations. He regarded himself as the most senior in respect of the
knowledge and operating background
in the service code environment.
He testified about his individual competency based assessment centre
report which had been carried
out by a ratings agency called Resolve.
He said that the report showed him to be above the benchmark which
had been set. According
to him Mr Rakolojane did not have sufficient
experience in respect of the system; he did not have knowledge of how
the system was
to be checked and could not resolve problems regarding
system design without delegation. He referred to an incident when Mr
Rakolojane
recommended an incorrect wagon for the transportation of
unleaded petrol with serious consequences. He had further instances
of
comparison of his abilities, pitting them against inabilities of
Mr Rakolojane.
[8] In opposing the
matter at arbitration the applicant’s testimony, particularly
that of Mr Ntshingila, was essentially that
four candidates
had been shortlisted for the position that Mr Luus was now contesting
and that Mr Luus was not shortlisted because
of his lack of
managerial experience. Furthermore, he had failed to fill the
critical requirements of having a degree or experience
in logistics
management. Mr Ntshingila said that the position that had been
advertised had been a second level management position
which was the
manager of managers and not the actual doer of the job. In respect of
the actual function, Mr. Ntshingila stated
that it was the ability to
access the system which could be learnt as it was secondary to the
actual management of the process.
[9] Mr. Ntshingila stated that the
short-listing process was done by him, Human Capital and the Resolve
consultants. The competency
assessment of Resolve was not relevant
under the circumstances and which was meant purely for the
restructuring process. Ultimately,
the decision to shortlist,
interview and recommend a particular candidate was done by Human
Capital and was referred to Resolve
for inputs only. In respect of
the allegation that Mr. Luus was unfairly excluded, Mr. Ntshingila
stated that he was assessed at
the level through the performance
management system and given the fact that he was only in the position
for three months and reporting
within his structure, that was not
sufficient time to assess his managerial ability. Furthermore, the
fact that he had acted in
the position prior to the appointment was
only on a rotational basis and the acting in a position would give
the employee exposure
to that position but did not necessarily make
him accountable for that position which responsibility lay with the
Executive Manager.
[10] Mr Ntshingila said that knowledge
in respect of train operations was not a requirement for the position
and also not a competency
that was required in the management
function. It was not required that the incumbent was to have insight
into the various aspects
of train operations and it was not a
requirement that he had to have a diploma in train operations either.
Mr. Rakolojane was in
the environment as a manager since 2003 whereas
Mr. Luus was only there since July 2007. Mr. Ntshingila testified
that the process
required the effective management of people and that
Mr. Luus was a junior official reporting to Mr. Rakolojane.
Grounds for review
[11]
It is
the applicant’s case that the second respondent failed to
discharge his duties and committed gross reviewable irregularities.
As a result, he reached conclusions no reasonable decision-maker
could have reached. His arbitration award is therefore unreasonable
and is reviewable in terms of section 145 of the Act and the grounds
relied upon therein. The second respondent was said to have
committed
a gross reviewable misconduct by failing to confine himself to and
decide the issues the parties hand requested him to
decide in their
pre-arbitration minute. The parties had requested the second
respondent to decide whether the applicant had erred
in not inviting
Mr Luus to the interview as well as whether that constituted unfair
labour practice. Instead of limiting himself
to those issues, the
second respondent went on to decide whether or not Mr Luus was the
best candidate for appointment to the position.
Grounds in opposition to the review
[12]
It
was
submitted that
,
based on
the requirements for the disputed position as well as
Mr Luus’
skills, knowledge and experience, the conclusion
which the second
res
pondent arrived at,
was
one
which a reasonable decision maker could have
reached.
The requirement for the job was
not that the candidate must have had managerial experience and
academic qualification, but that
unless the applicant
could
demonstrate that he ha
d
developed
the necessary competencies through experience, a degree in business
or
logistics management or related field
was
required.
It was never
disputed at the arbitration hearing that
Mr Luus
ha
d
developed the necessary competencies through
experience.
[13] It was
contended that the second respondent was not only required to decide
whether or not the applicant had erred in not inviting
Mr Luus
to the interview as well as whether that
constituted unfair labour practice, the second respondent was also
called upon to place
h
im
on the 1
st
notch of level 109 salary band, or any other
relief the second respondent
might
have
deemed fit in the event he f
ou
nd in h
is
favour.
[14] The
submission
went on to say that the
crux of the issue
wa
s
that in terms of the pre-arbitration minutes parties agreed that in
the event the second respondent f
ou
nd in
favour of
Mr Luus,
the second respondent
either
had to
place h
im
on
the 1
st
notch
of the level 109 salary band or
to
award
any other relief that the second respondent
might
have
deemed fit.
The conclusion which the second
respondent
arrived at was said to fall
squarely within the relief agreed to between the parties in terms of
the pre-arbitration minutes, in
the event the second respondent f
ou
nd
that the applicant had committed an unfair labour practice.
[15] In the event
the Court
determined
that the second
respondent exceeded his powers
when
finding
that
Mr Luus
was the best candidate for the
disputed position,
the
submission
made
was
that, parties at the arbitration proceedings
in leading their respective witnesses did not confine themselves to
issues agreed upon
in the minutes of the pre-arbitration hearing and
that the second respondent was obliged in law to take all relevant
material before
him into consideration.
It
was
further submitted that by not confining
their evidence on the issues agreed upon in terms of the pre
arbitration minutes, parties
by conduct or tacitly
,
amended
the second respondent’s terms of reference.
Analysis
[16] The applicant
has submitted that the second respondent failed to exercise his
duties and committed a gross irregularity, resulting
also, to
reaching conclusions which no reasonable decision maker could reach.
Section 145 referred to in section 158 (1) (g) of
the Act, to the
extent relevant, states that a
ny party who alleges a defect in
any arbitration proceedings may apply for an order setting aside the
arbitration award. In terms
of section 145(2) of the Act:
a
defect referred to in subsection (1), means –
(a) that the commissioner-
(i) committed misconduct in relation
to the duties of the
commissioner as an arbitrator;
(ii) committed a gross irregularity in
the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s
powers; or
(b) that an award has been improperly
obtained.
[17] In Southern Sun Hotel Interests
(Pty) Ltd v CCMA & others
2
,
this Court
held
per van Niekerk J that:
“…
..section
145 requires that the outcome of CCMA arbitration proceedings (as
represented by the commissioner’s decision) must
fall within a
band of reasonableness, but this does not preclude this Court from
scrutinising the process in terms of which the
decision was made. If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant,
or the commissioner commits
some other misconduct or a gross irregularity during the proceedings
under review and a party is likely
to be prejudiced as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the
proceedings or whether on the basis
of the record of the proceedings, that result is nonetheless capable
of justification”.
3
[18]
In
the
case of Komape v Spoornet (Pty) Ltd & others
4
Court held
that
:
‘
the
question for consideration at the review level is not whether the
decision of the commissioner is correct but rather whether
the
inference drawn from the facts before the commissioner is one which a
reasonable decision maker could not have drawn’.
[19] The main consideration raised by
this application is whether the second respondent went beyond the
scope of the issues he was
called upon by the parties to determine.
Within the scope of what had to be ascertained, lies the question
whether Mr Luus did
prove, at arbitration, the commission of an
unfair labour practice by the applicant.
[20] The contents of the
pre-arbitration minute make it clear that the initial relief sought
by Mr Luus, in the event he was successful
in proving the commission
of an unfair labour practice, was compensation and not an appointment
to the contested post. Page 8 of
the transcript of the arbitration
proceedings has Mr van Straten, representing Mr
Luus, addressing the second respondent and indicating that
compensation was the
relief sought at the end of the arbitration
hearing. At that stage of the proceedings the pre-arbitration minute
had become part
of the documents for the hearing.
[21]
In
the case of NUMSA & Others v Driveline Technologies (Pty) Ltd &
another
5
the Labour Appeal Court held that:
“
It
is true, of course, that a pre-trial agreement is a consensual
document which binds the parties thereto and obliges the court
(in
the same way as the parties’ pleadings do) to decide only the
issues set out therein. In particular, a party who agrees
to claim
only limited relief would be bound by his agreement (Shoredits
Construction (Pty) Ltd v Pienaar NO & others
[1995]
4 BLLR 32
(LAC)
at
34C–F
).”
[22] Mr Luus submitted that i
t
was possible for parties at an arbitration hearing to amend the terms
of reference by agreement, even possibly by one concluded
tacitly, or
by conduct. True as the law in this respect is, this approach is
however not borne out by any evidence on the record.
Parties never by
any means agreed to go beyond the pre-arbitration minute. Knowing the
limits which the parties had set for themselves,
the second
respondent would have indicated in the award that an agreement had
been reached to extend the scope of the probe.
[23]
As
correctly submitted by the applicant, the effect of Mr Luus’
complaint at arbitration was procedural in that it focused
on not
being invited for interview and not that he should have been
appointed. Had the second respondent decided the point in issue
as
required and found in favour of Mr Luus, he would not have ordered
the applicant to promote him. The second respondent therefore
failed
to discharge his duties within the confines of the power given to him
and in this regard, committed a defect as defined
in section 145 of
the Act.
[24] The next issue
is whether any unfair labour practice was proved by evidence to have
been committed by the applicant in failing
to short list Mr Luus. The
evidence of Mr Ntshingila was that the knowledge in respect of train
operations was not a requirement
for the position and also not a
competency that was required in the management function. It was not
required that the incumbent
was to have insight into the various
aspects of train operations and it was not a requirement that he had
to have a diploma in
train operations either.
[25] It turned out that Mr Luus had
the least management experience compared to all short listed
candidates. In the pre-arbitration
minute parties agreed that t
he
advertisement for the position was what it purported to be and the
requirements for the position in terms of the advertisement
were
essential for the position. Under the sub-topic knowledge and skills
the advertisement specifically indicated the fields of
management
required of the successful candidate. Mr Luus fell far short in that
regard as his knowledge and skills were limited
to yard operation,
transportation of hazardous material, train operations and operating
in the service code environment. He had
only nine months of
management experience.
[26] The applicant therefore did not
commit any error in not inviting Mr Luus to the interview for the
contested position. No unfair
labour practice was accordingly
committed by the applicant, hence the order issued by Court at the
hearing of this matter, on 26
April 2013 namely that:
The review application in this matter
is granted.
No costs order is made.
_________
Cele J
Judge of the Labour Court.
APPEARANCES:
For the applicant: Mr Maserumule of
Maserumule Attorneys
For the third respondent: Mr Manganyi
of
1
T
he
Labour Relations Act Number 66 of 1995 as amended.
2
[2009]
11 BLLR 1128
(LC)
3
At
para 17
4
(2009)
29 ILJ 2967 (LC) page 2792 at paragraph 27.
5
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC) at para 16