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[2013] ZALCPE 11
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South African Police Services v Nkambule and Others (P 103/10) [2013] ZALCPE 11 (21 May 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
judgment
Not reportable
case No: p 103/10
In the matter between:
SOUTH AFRICAN POLICE SERVICES
Applicant
and
MBULELO PATRICK NKAMBULE
First Respondent
MR L.M. NABO, N.O
Second Respondent
THE SAFETY AND SECURITY SECTORAL BARGAINING COUCIL
Third Respondent
Heard
:
16 AUGUST 2012
Delivered
:
21 MAY 2013
Summary: It is the prerogative of the employee who has been
overlooked for promotion to choose between referring an unfair labour
practice related to promotion or a discrimination dispute. The
employer has no right to dictate either the nature of the dispute
to
be referred or the appropriate forum for its resolution.
Section 145 of the LRA review: Unfair labour practice related to
promotion.
JUDGMENT
LALLIE, J
Introduction
This is an application to review and set aside an award of the
second respondent (the arbitrator) in which he found that the
applicant committed an unfair labour practice by not promoting the
first respondent Mr Nkambule (Nkambule).
Factual Background
In 2007 the applicant advertised the principal personnel officer
post. It is a level 7 post. Nkambule, an employee of the applicant
who was a clerk in a level 3 post applied. He was short-listed and
recommended for appointment by the interviewing panel as he
had
obtained the highest points. He was not appointed, instead Ms Sifo
(Sifo) who was the tenth in the order of merit of the
candidates was
appointed. He referred an unfair labour practice dispute related to
promotion to the third respondent. The second
respondent (the
arbitrator) issued an award in his favour and ordered the applicant
to appoint him to a level 7 post equivalent
to the one he was
recommended for and that he be remunerated accordingly with effect
from 15 February 2007. In this application
the applicant seeks an
order reviewing and setting aside the arbitration award.
Grounds for Review
The only ground the applicant sought to rely on is that the
arbitrator lacked jurisdiction to arbitrate the dispute before him
as the real dispute that was the subject of the arbitration was
discrimination. It falls under the exclusive jurisdiction of
this
court in terms of the Employment Equity Act 55 of 1998 (the EEA).
Merits
It is common cause that subsequent to Sifo’s appointment to
the post Nkambula referred an unfair labour practice dispute
to the
third respondent. His case was based on the applicant’s
conduct of overlooking him for appointment to the post,
a step which
would have been a promotion, although he was the best candidate.
It is true that the applicant’s conduct of overlooking
Nkambule for promotion notwithstanding that he had scored the
highest points and preferring to appoint Sifiso, an African female
may constitute either an unfair labour practice related to promotion
as envisaged in the LRA or discrimination in terms of EEA. In casu
Nkabule alleges that his dispute is based on the former and
the
applicant expressed the view that it is based on the latter.
I agree with Nkambule that the correct approach to be adopted in
this matter is expressed as follows in
Department of Justice v
Commission for Conciliation, Mediation and Arbitration and Others.
1
“Thus, the
ipse dixit
of the respondent is explicit:
the claim is based on an unfair labour practice relating to
promotion and not on unfair discrimination.
This important
consideration as the respondents were the masters of the case before
the CCMA and thus had the prerogative to
base their action on
grounds of their choosing. It is not for the employer to determine
what the employees cause of action should
be, nor that matter to
dictate in which forum the case should be heard. Nevertheless the
ipse dixit
of the respondent is not the only factor to be
considered by the court in determining the central issues before the
CCMA. If
it is found that the real issues before the CCMA was an
unfair discrimination, then the court should find for the applicant
on
its jurisdiction point”. The determination of jurisdiction
is expressed as follows in
Gcaba v Minister for Safety and
Security and Others:
2
“
Jurisdiction
is determined on the basis of pleadings, as Langa CJ held in
Chirwa
,
supra and not the substantive merits of the case. If Mr Gcaba’s
case were heard by the High Court, he would have failed
for not being
able to make out a case for the relief he sought, namely review of an
administration decision. In the event of the
court’s
jurisdiction being challenged at the outset (
in
limine
),
the applicant’s pleadings are the determining factor. They
contain a legal basis of the claim under which the applicant
has
chosen to invoke the court’s competence. While the pleadings
including in motion proceedings, not only the formal terminology
of
the notice of motion, but also the contents of the supporting
affidavit-must be interpreted to establish what the legal basis
of
the applicant’s claim is, it is not for the court to say that
the facts asserted by the applicant would also sustained
another
claim, cognisable only in another court. If however the pleadings,
properly interpreted, establish that the applicant is
asserting a
claim under the LRA, one that is to be determined exclusively by the
Labour Court, the High Court would lack jurisdiction.
An applicant
like Mr Gcaba, who is unable to plead facts that sustained a cause of
administrative action that is cognisable by
the High Court, should
thus approach the Labour Court
”.
In determining the forum with the necessary jurisdiction it is
therefore necessary to consider a number of factors. Firstly,
it is
the way in which the reffering party’s case is pleaded before
the third respondent. As there are no pleadings in
bargaining
councils the manner in which the dispute is couched in the referral
documents serves the purposes. It is common cause
that Nkambule
referred an unfair labour practice related to promotion in terms of
section 186 (2) (a) of the LRA.
The second factor to be taken into account is that it is the
prerogative of the master of the case, the referring party to choose
the nature and therefore correct forum of the dispute. As the
referring party, Nkambule chose the nature of his case and based
it
on section 186 (2) (b) of the LRA. Section 191 (1) (a) (i) bestows
jurisdiction over unfair labour practices on the CCMA and
bargaining
councils. By electing to refer an unfair labour practice relating to
promotion, Nkambule automatically chose the third
respondent as the
correct forum to determine his dispute.
The third factor is that it is not for the employer party to
determine the cause of action or to dictate it. And lastly the real
issue being referred plays a pivotal role in determining the forum
with the necessary jurisdiction. The applicant submitted that
the
actual dispute before the third respondent was a discrimination
dispute. It based this argument on the averment that Nkambule
complained about the fact that the applicant utilised an equity plan
as reason for preferring Sifo, a female employee over him
in respect
of a promotional post. It sought to rely on the manner in which the
arbitrator defined the issue to be decided which
he stated as
follows: “Since this is an unfair labour practice dispute
related to promotion, the following issues are in
dispute and
therefore need to be determined:
9.1. Whether the 1
st
Respondent was justified to use three
(3) different equity plans for the same promotion phase in the same
province
9.2. Whether the Provincial, Divisional, and National Commissioners
were justified o (sic) in over emphasise equity over and above
other
factors, when approving and appointing a candidate for the post in
question;
9.3. Whether the Applicant’s non appointment and the 2
nd
Respondent’s appointment to the post in question amounted to an
unfair labour practice. If so;
9.4. Whether the relief of appointing the Applicant to the post of
the Principal Personell Officer, post number EC 113-2007, would
be
appropriate, under the circumstances”.
[10] The applicant argued that the reliance by the arbitrator on the
use of the equity plans in defining the nature of the dispute
before
him confirms the correctness of its version. The applicant further
argued that the arbitrator was not bound by the manner
in which the
parties defined the dispute and relied on the following dictum in
Wardlaw v Supreme Moulding (Pty) Ltd
3
‘In the light of the above it seems to us
that the employee’s allegation of the reason for the dismissal
as contemplated
in section 191 (5) is only important for the purpose
of determining where the dispute should be referred after
conciliation but
the forum to which it is referred at that stage is
not necessarily the forum that had jurisdiction to resolve the
dispute on the
merits finally. That may depend on whether it does
later appear that the reason for dismissal is another one other than
the one
alleged by the employee and is one that dictates that another
forum has jurisdiction to resolve the dispute on the merits. Once
a
dispute has been referred to, for example, the Labour Court, the
Labour Court provisionally assumes jurisdiction. That assumption
of
jurisdiction is conditional upon it not later becoming ‘apparent’
to court within the contemplation of section 158
(2) of the Act that
the reason for the employee’s dismissal is one that falls
within section 195 (5) (a) of the Act. We say
it is provisional or
conditional because, if it later becomes ‘apparent’ that
the dispute is one which ought to have
been referred to arbitration,
the court will decline jurisdiction and have the dispute referred to
arbitration.’
[11] The applicant submitted that Nkambule substantiated his unfair
labour practice claim by relying on the applicant’s unfair
conduct of using three different equity plans in defending itself
against claims in a single promotion cycle. The arbitrator himself
based his decision partly on the use of the equity plans. The
applicant submitted that where there has been a dispute about the
application of an equity plan in the context of a promotion dispute,
the dispute has to be adjudicated by this court. In
Baxter v
National Commissioner, Correctional Services and Another
4
the court found the status of equity plans implemented not to appoint
the applicant questionable and found that the failure to
appoint the
applicant was based on unfair discrimination.
[12] In determining the actual dispute before the arbitrator, I have
considered that Nkambule referred an unfair labour practice
dispute
based on his non-appointment to a senior post notwithstanding that he
was the best candidates. His complaint is based on
merit. He
submitted that he should have been appointed by virtue of being the
best candidate and his non-appointment constituted
an unfair labour
practice. The issue of the equity plans was raised by the applicant
as a defence which Nkambule had to disprove.
He could not have
disproved it without referring to the equity plans. A defence cannot
be used to determine jurisdiction as it
would deprive the referring
party the right to determine the nature of its dispute and the forum
to determine it.
[13] The case the applicant sought to rely on can be distinguish from
the present in that Nkambule took a decision to refer his
dispute to
the third respondent. The actual dispute before the arbitrator was an
unfair labour practice. Neither Nkambule nor the
second respondent
referred to discrimination. The fact that the word discrimination was
not used, does not on its own reflect the
true nature of the dispute.
However, when considered with other relevant factors in determining
the nature of the dispute, it supports
Nkambule’s version.
[14] Reference to equity plans only, especially those which have been
introduced in defence, does not necessarily make a dispute
a
discrimination dispute. Another factor which points to the conclusion
that Nkambule’s dispute is an unfair labour practice
rather
than discrimination is that he submitted that the equity figures the
applicant referred to in its defence did not apply
to employees like
him, who were appointed in terms of the Public Service Act.
[15] An employe’s conduct of by passing the best candidates for
appointment does constitute an unfair labour practice. Nkambule
cannot be criticised for exercising his right of challenging his
non-appointment as an unfair labour practice based on merit only.
[16] For these reason I conclude that the third respondent had the
necessary jurisdiction to arbitrate the dispute before him.
The
applicant did not prove any valid grounds to have the second
respondent’s award reviewed and set aside. Further no, reasons
were given for costs not to follow the result.
[17] In the circumstances, the following order is made:
18.1 The application is dismissed with costs.
______________
Lallie, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. Kroon
Instructed by: State Attorney
For the first Respondent: Adv. JL Basson
Instructed by: Grosskopf Attorneys
1
(2001)
22 ILJ 2439 (LC) at para 26-27.
2
[2009]
12 BLLR 1145
(CC) at para 75.
3
[2007]
28 ILJ 1042 (LAC) at para 24.
4
[2006]
9 BLLR 844
(LC).