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[2013] ZALCD 17
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Kwadukuza Municipality v Rajamoney and Others (D880/10) [2013] ZALCD 17 (13 June 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: D880/10
In the matter between:
KWADUKUZA MUNICIPALITY
.......................................................................
Applicant
and
LOGANANTHAN RAJAMONEY
........................................................
First
Respondent
NONHLANHLA DUBAZANE N.O
.................................................
Second
Respondent
SALGBC
............................................................................................
Third
Respondent
MARIUS J F PRINSLOO
.................................................................
Fourth
Respondent
Heard: 06 November 2012
Delivered: 13 June 2013
Summary: Review of award which ordered the applicant
to give the first respondent protective promotion - For the
requirements of
an advertised post to be met, cognizance must be
taken of the objective of the policy to ensure that the candidate who
best meets
the selection criteria is appointed – no defect
found in the award.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Cele J
Introduction
[1]
This is an application in
terms of section 145 of the Labour Relations Act
1
(the Act) to review and set aside the
second respondent's award dated 30 August 2010, which ordered the
applicant to give the first
respondent protective promotion. The
first respondent opposed this application.
Factual background
[2]
The first and fourth respondents together with other police officers
in the employ of the applicant applied for an advertised
post of
Assistant Director: Crime Prevention. The applicant appointed the
fourth respondent to the post with effect from 1 December
2008 on the
basis that he achieved the highest score following an interview
process that was held.
At
the time that the post
was advertised, the job description listed as one of the
“requirements” of the post the holding
of a Code EC (code
14) drivers’ license. Subsequent to the appointment of the
fourth respondent, the job description was
changed to ‘relax’
the license requirement to a Code 08 Driver’s License.
[3]
Due to a failure of the applicant to appoint him, the first
respondent lodged a grievance with the applicant. The applicant
recommended to its council that attempts be made to settle the
matter. Council of the applicant was not prepared to settle the
matter.
[4]
The first respondent then referred an unfair labour practice dispute
to the third respondent, citing that he had been unfairly
treated
vis-à-vis
the
fourth respondent in that the first respondent:
met
all the requirements of the post, and the fourth respondent did not
and should not have been even short-listed; and
that,
as the second-placed candidate and a person who could perform the
required tasks he should have been appointed.
[5]
Conciliation failed to resolve the dispute and it was referred to
arbitration. The second respondent was appointed to arbitrate
the
dispute. She found that the applicant had committed an unfair labour
practice in not appointing the first respondent. She,
however, found
that, due to the time lapse that had since passed, it would be unfair
and improper to order the applicant to remove
the fourth respondent
from the post and she ordered the applicant to give the first
respondent protective promotion instead.
[6]
It remained common cause between the parties that the fourth
respondent scored 84.2% at the interview whereas the first respondent
scored 63%. The scoring was not challenged by the parties. The chief
findings of the third respondent are:
The
point of departure was to look at the advertisement to see what the
requirements for the disputed post are and to ascertain
from
evidence presented whether the fourth respondent met them.
The
first respondent met the requirements for the post, which was
evident from the findings of the grievance hearing and from
a
document marked annexure G, containing detailed information on the
validity of the first respondent’s driver’s
license that
was not challenged by the applicant
A
candidate ought to be short listed only if he or she meets the
necessary requirements for the post. A consideration of the
intention of the drafters of the advertisement was necessary. From
the evidence, it was clear that someone who possessed an EC
driver’s
license, as at the time of the application, was sought. There would
be no significance flowing from a subsequent
decision to change that
requirement, such as at the time of making the appointment. If there
was to be any amendment to the advertisement
a due process was to be
followed entailing the re-advertisement of the post for purposes of
fairness to all who were interested
in applying for the post.
The
amendment of the advertisement without a due process followed was
grossly unreasonable unfair.
In
the absence of satisfactory evidence that the fourth respondent had
the EC driver’s license, the fourth respondent did
not meet
the requirements for the post.
The
appointment process followed was flawed in that the applicant
short-listed and appointed a candidate who did not meet the
necessary requirements for the post, thus committing an unfair
labour practice.
Protective
promotion was the appropriate remedy to the first respondent due to
the time lapse of approximately 16 months since
the fourth
respondent was appointed to the post.
Grounds
for review
[7]
A number of review grounds have been outlined by the applicant in
support for this application. The submissions made were that:
The
second respondent failed to deal with the evidence placed before her
that a prior interview process had taken place at which
the
interviewing panel were unable to recommend an appointment. As a
consequence, it was decided that all internal applicants
were to be
short listed. This included the present incumbent together with the
first respondent. The second respondent's failure
to deal with this
evidence constitutes a material irregularity as she has failed to
take into account a material aspect of the
applicant's evidence at
the arbitration. Had she taken this aspect into account, a different
result might have ensued.
Even
if the second respondent was correct in finding that the applicant's
failure to abide by its own selection criteria which
included the
requirement of an EC license constituted a fatal flaw in its
selection process, she was not empowered to award the
first
respondent a protected promotion which in effect obliges the
applicant to pay the first respondent on the same terms and
conditions it pays the current incumbent.
The
second respondent, at best for the first respondent, was obliged to
set aside the present incumbent's appointment and to refer
the
matter back to the internal interview process for the matter to
proceed
de novo.
The
second respondent ignores the Applicant's human resources policy
manual with particular reference to the recruitment selection
and
retrenchment policy. The policy emphasises that the applicant must
ensure that it matches "human capital to the strategic
and
operational needs of the organisation". The policy specifically
states that no candidate will be unfairly discriminated
against
solely through lack of formal qualification where the applicant does
not meet the basic minimal and formal qualification
requirement. The
second respondent committed an irregularity in deciding that the
failure by the present incumbent to possess
an EC driver license was
material enough to award the first respondent a protective
promotion.
The
award does not explain on what basis the second respondent finds
that the present incumbent's failure to possess an EC driver’s
license outweighs his experience in a managerial position nor does
it take into account the vast difference in respect of scores
at the
interview between the current incumbent and the first respondent.
It
is important to note that the second respondent's award states that
the applicant committed an unfair labour practice in not
appointing
the first respondent into the current incumbent's post. In reaching
this conclusion, the second respondent exceeds
her powers and
misconceives the basis of the dispute she was to determine.
The
second respondent concluded that the requirements for the post as
described in the advert were necessary or essential requirements.
This conclusion is not based on any evidence placed before her
during the course of the arbitration.
The
second respondent also took into account the application of the
applicant's Employment Equity Plan ["EEP"]. It was
conceded by the first respondent that the EEP does not apply as it
only came into operation after the appointment of the current
incumbent. It was not applicable at the time he was interviewed.
Analysis
[12]
In the recent case of
Herholdt
v Nedbank Ltd
,
2
the Labour Appeal Court has set a
review test in cases on gross irregularity relating to latent
irregularity as follows:
‘
There
is no requirement that the commissioner must have deprived the
aggrieved party of a fair trial by misconstruing the whole
nature of
the enquiry. The threshold for interference is lower than that; it
being sufficient that the commissioner has failed
to apply his mind
to certain of the material facts or issues before him,
with
such having potential for prejudice and the possibility that the
result may have been different.
’
3
(emphasis added)
[13]
It
must, therefore, be determined in this application whether the second
respondent has failed to apply his mind to certain of the
material
facts or issues before him, with such having potential for prejudice
and the possibility that the result may have been
different had such
failure not occurred.
[14]
On 26 March 2008, the Municipal Manager of the applicant gave
approval to the human resources policy manual of the applicant,
the
policy manual, which was in operation at the material times to the
advertising and filling of the contested post. Clause 4
of the policy
manual provides for the recruitment, selection and retention policy
and to the extent relevant here it reads:
‘
4 RECRUITMENT, SECTION AND RETENTION POLICY
OBJECTIVE
The objective of the policy is to ensure that the candidate who best
meets the selection criteria is appointed.
POLICY
Municipality
recruitment, selection and retention processes will fundamentally be
about matching human capital to the strategic
and operational needs
of the organization and ensuring the full-utilisation and continued
development of these resources.
The
Municipality aims to attract, obtain and retain people with the
required competencies (knowledge, skills and attributes) within
the
organization.
In
addition this policy aims to ensure that a continuous supply of high
caliber employees is available to meet the Municipality’s
immediate and future human resources needs…
Municipality will continuously create an environment that promotes
equal opportunity for all desiring to enter the organization
and for
further advancement within the organization based on job
requirements, qualifications, experience, skills and prevailing
job
profile.
…
.
However, affirmative action strategies must be taken into
consideration when recruiting candidates. No candidate will be
unfairly
discriminated against solely through lack of formal
qualifications, where the applicant does not meet the basic minimum
formal
qualification requirement…’
[15]
For the requirements of an advertised post to be met therefore,
cognisance must be taken of the objective of the policy to
ensure
that the candidate who best meets the selection criteria is
appointed. The short listing of a candidate who least meets
the set
selection criteria will ordinarily fly on the clear face of the
objective of the policy. Such short listing would then
be arbitrary
as contrary to the selection criteria. The applicant set out
requirements to be met for the contested post. The fairness
of the
selection process lay in the screening of all candidates against the
set requirements in a similar approach. It has to be
borne in mind
that there would be people who desired to apply for the contested
post but did not submit their applications merely
because they did
not meet the set requirements. It would also be unfair to set all
candidates who met all requirements against
any candidates who lack
any of the requirements.
[16]
According to the policy manual, the applicant aims to attract, obtain
and retain people with the required competencies, which
refers to the
knowledge, skills and attributes within the organisation. In
addition, this policy aims to ensure that a continuous
supply of high
caliber employees is available to meet the Municipality’s
immediate and future human resources needs. The
setting of
requirements for a post is the method by which the set aims of the
applicant are achieved. In its considered wisdom,
the applicant
decided to have selection criteria which included the requirement of
an EC driver’s license for the contested
post. It was within
its powers to make that decision. It remained open to the applicant
to classify this requirement as a recommendation
for the post, if the
applicant wanted to retain a discretionary right on how to utilise
this aspect.
[17]
The second respondent, therefore, committed no defect in relation to
the findings she made on the post requirements and with
particular
reference to the findings that:
‘
A
candidate ought to be short listed only if he or she meets the
necessary requirements for the post. A consideration of the intention
of the drafters of the advertisement was necessary. From the evidence
it was clear that someone who possessed an EC driver’s
license,
as at the time of the application, was sought. There would be no
significance flowing from a subsequent decision to change
that
requirement, such as at the time of making the appointment. If there
was to be any amendment to the advertisement a due process
was to be
followed entailing the re-advertisement of the post for purposes of
fairness to all who were interested in applying for
the post
.’
[18]
The applicant criticised the second respondent saying she ignored the
applicant's human resources policy manual with particular
reference
to the recruitment selection and retrenchment policy emphasising that
the applicant had to ensure that it matched "human
capital to
the strategic and operational needs of the organisation". The
policy specifically stated that no candidate would
be unfairly
discriminated against solely through lack of formal qualification
where a candidate did not meet the basic minimal
and formal
qualification requirement. A proper interpretation of the policy on
this issue would have to take into consideration
the first sentence
where the policy appears, which reads:
‘
However,
affirmative action strategies must be taken into consideration when
recruiting candidates.’
[19]
The applicant led no evidence to show that it was applying
affirmative action when it short-listed the fourth respondent who
did
not meet the code EC driver’s license. The issue of a failure
to possess an EC driver’s license outweighing the
fourth
respondent’s experience in a managerial position or the vast
difference in respect of scores at the interview between
the current
incumbent and the first respondent was irrelevant when he did not
deserve to be short listed, in the first place. The
applicant has,
therefore, not made out a case for a finding that the second
respondent committed any gross irregularity in the
finding she made
in this regard.
[20]
The applicant contended that the second respondent committed an
irregularity in deciding that the failure by the fourth respondent
to
possess an EC driver license was material enough to award the first
respondent a protected promotion. It is trite that “protected
promotion” may be granted as a relief where evidence showed
that but for the unfair labour practice the contesting candidate
would probably have been appointed to the contested post.
4
Such evidence was overwhelming in
this matter. Again, no defect has been shown to have been committed
by the second respondent.
Nor has such defect been shown to exist in
respect of any other grounds of review, in the light of the critical
finding that the
fourth respondent ought not to have been short
listed in the first place. The second respondent applied her mind to
the period
that elapsed since the appointment of the fourth
respondent was made and the date of the award when considering the
appropriate
relief. Protective promotion was one of the decisions a
reasonable decision maker could reach.
5
[21] Accordingly, the following order stands to be
issued:
The
review application in this matter is dismissed.
No
costs order is made.
___________
Cele J.
Judge of the Labour Court
APPEARANCES:
For
the Applicant: Mr M G Maeso
Instructed
by: Shepstone and Wylie, Umhlanga Rocks.
For the First Respondent: Mr T E Seery
Instructed by: Loganthan Rajamoney, Stanger.
1
The
Labour Relations Act No 66 of 1995
.
2
(2012)
23
ILJ
1789 (LAC). See also
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ
2405
(CC);
[2007] 12 BLLR 1097
(CC) – paras 261 to 266.
3
Herholdt
at para 39. This test was first set by Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31
ILJ
452
(LC);
[2009] 11 BLLR 1128
(LC) at para 17.
4
See
Minister of Safety and Security v SSSBC and Others
[2010] 9
BLLR 965
(LC). See also
PSA v Department of Justice and Others
[2004] 2 BLLR 118
(LAC) where the only impediment to granting a
similar relief was a failure to join the party with a direct and
substantial interest
in the matter.
5
See
the case of
Minister of Safety and Security v SSSBC and Others
at footnote 4 above.