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[2013] ZALCD 33
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Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALCD 33 (25 September 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not Reportable
Case no: D439/12
In
the matter between
:
JOSHUA
MBONGENI
NGCOBO Applicant
and
STANDARD
BANK OF SOUTH
AFRICA First
Respondent
COMMISSIONER
NHLANHLA
MATHE Second
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION Third
Respondent
Heard:
22 May 2013
Delivered:
25 September 2013
Summary:
Unfair labour practice relating to
promotion or appointments. There is no right or entitlement to a
promotion or an appointment
to a post. Arbitrators and courts must be
reluctant to interfere with the employer’s prerogative to
promote or appoint unless
there is unfairness. Employee not appointed
to a position failing to show unfairness in the process of selection.
Application for
review dismissed.
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application to review and set aside an award
issued by the Second Respondent (The Commissioner) under case
number
KNDB16326-11 acting under the auspices of the Third Respondent (The
CCMA). The award was issued on 29 April 2012.
[2]
In his founding affidavit, the Applicant had contended that the
application was brought in terms of section 158 (1) (g) of the
Labour
Relations Act (“The Act”). A preliminary point was raised
by the First Respondent in its written heads of argument
to the
effect that the application under the said provision was clearly
misconceived and legally impermissible as what the Applicant
sought
to review was an award. This point was however not pursued as it was
common cause that what the Applicant sought to review
was an
arbitration award. An application for condonation in respect of the
late filing of the Applicant’s replying affidavit
was also
granted.
Background
to the application:
[3]
The Second Applicant is still in the employ of the First Respondent
as an Officer Processing. At the time the dispute was referred
to the
CCMA, he had occupied the position of Supervisor (Grade SBG07) in the
First Respondent’s processing department. In
April 2010, the
First Respondent had appointed a team of consultants in order to
create an appropriate structure for its Cash Centre
Department in
Durban. This process had resulted in a proposed new structure with
new job descriptions defined and graded using
an independent Grading
Committee. Extensive consultations were held with the representative
union, SASBO regarding the new proposed
structure.
[4]
In terms of the new structure, the old positions of Supervisor
(SBG07) were made redundant, and new positions of Team Leader
were
created and graded at level SBG09. The First Respondent’s
contention was that these new positions were more complex
and were
not merely an upgrade of the former positions of Supervisor. This had
necessitated that 17 Team Leader positions be advertised.
Fifty
candidates including the Applicant (who was then a Supervisor) had
applied for those vacancies. The candidates were all briefed
on the
assessment criterion which was based on 25% current performance; 50%
interview process and 25% Evalex psychometric evaluation.
The latter
is an assessment tool used for profiling candidates to determine
their suitability for certain roles, and in this case,
whether a
candidate was suitable for the role of Team Leader.
[5]
The Applicant’s application for one of the 17 positions was
unsuccessful. The First Respondent’s contention was
that he was
rated B for current performance, meaning that he had conclusively met
performance levels. In the interview however,
he was not in the top
20 of the short-listed candidates as he had performed poorly. The
results of the Evalex evaluations were
equally not favourable as he
was rated as being unsuitable for the position. Following this
process, the Applicant was then appointed
to the position of Office
Processor, which was basically at the same level as that of the
previous position of Supervisor. These
arrangements emanated from an
agreement with SASBO that all employees who were unsuccessful during
the selection process in respect
of newly created posts were to be
accommodated in positions which were at the same level as the
positions they had occupied prior
to the restructuring process.
[6]
The Applicant had lodged a grievance on 30 September 2011 and alleged
that the First Respondent had committed an unfair labour
practice. A
grievance hearing was held on or about 04 October 2011. The hearing
had concluded that the Applicant had not been unfairly
treated. He
had then escalated the matter to two higher levels, and on each
occasion he was informed that there was no merit in
his grievance. He
had then referred a dispute to the CCMA and alleged that the First
Respondent had committed an unfair labour
practice by not appointing
or promoting him to the position of Team Leader. Conciliation having
failed, the dispute was then referred
for arbitration. At
arbitration, the First Respondent had closed its case without calling
any witnesses. Nevertheless, the commissioner’s
conclusions
were that on his own version, the Applicant had failed to establish
that the First Respondent had treated him unfairly
by not appointing
him to the position of the Team Leader.
The award:
[7]
At paragraph 5 of the award, the commissioner had stated the
following;
‘
The
employee is employed in the capacity of a team leader SBG07 in the
condonation refused as degree of lateness is excessive. Referral
is
424 days late-extremely excessive. Employer cash centre’
(Sic)
It
was common cause that the issue the Commissioner had to determine
related to whether the First Respondent had committed an unfair
labour practice. The issue of condonation was not a matter before the
Commissioner, and the above paragraph signifies those instances
where
a Commissioner had clearly used a template in writing the award and
had not proof read it prior to submitting it. This is
a clear case of
lack of vetting prior to awards being issued to the parties. Other
than this embarrassing omission, the substance
of the award was as
follows;
[8]
In his analysis, the commissioner had stated that where there is a
dispute in terms of section 186 (2) (a) of the Act pertaining
to the
employer’s prerogative to promote or appoint, the determination
involves a two-fold enquiry. The first question is
whether the
employer acted unfairly, and secondly, whether had it not been for
the unfairness, whether by the act or omission,
the employee would
have been promoted or appointed. The second part of the enquiry only
became relevant in the event that the employee
succeeded in proving
that the employer acted unfairly. If that onus (on the employee) is
not discharged, he cannot succeed and
that would be the end of the
enquiry.
[9]
On the facts, the commissioner had further found that the employer
had re-organised the structure of the positions in the workplace,
and
that newly created positions were advertised. The Applicant had
applied for one of the positions, was short-listed and interviewed.
This was done in line with the First Respondent’s recruitment
policies. In the commissioner’s view, the recruitment
process
was fair and transparent, and the Applicant did not at any stage
complain about being unfairly discriminated against. The
commissioner
further concluded that the Applicant as a witness had “fared
poorly” on account of his evidence being
generally not
probable, and had contradicted himself on important aspects of his
evidence.
[10]
The commissioner had also described the Applicant as verbose,
stubborn, argumentative and unable to prove how and by whom he
was
forced to apply for the position as he had alleged. The commissioner
further added that there was no merit in the Applicant’s
claim
that the First Respondent had failed to apply the Evalex programme
fairly. Based on the evidence, the commissioner had concluded
that
the Applicant had merely applied for the position that became
available after restructuring and had performed poorly both
at the
interview and at Evalex. It was the Applicant’s poor
performance when presented with an opportunity that resulted
in him
not being appointed.
Grounds
for review:
[11]
In his founding affidavit, the Applicant had stated that the award
was reviewable on the following grounds;
11.1
‘The Second Respondent committed gross irregularity by taking
into account the First Respondent’s
version only and not giving
consideration to my version.
11.2
On a balance of probabilities, my version is more probable than that
of the First Respondent when looking
at the evidence in totality
11.3
The commissioner committed a gross irregularity, exceeded his powers
and misconducted himself in making
the award he made. The award is
not rationally justifiable in the light of the evidence in the
matter’
[12]
In his supplementary affidavit, the Applicant had amplified the
grounds for review by stating the following;
12.1.1
‘
The Second Respondent misdirected
himself in making the following findings;
12.1.2 That the
First Respondent was involved in a restructuring. This is in contrast
with his earlier finding that “collective
agreement was not
produced”. It turned out that what was being referred to as a
collective agreement was an exchange of e-mails
between the employer
and the employee’.
12.1.3 That there
was no unfair conduct on the part of the employer. This despite the
fact that the First Respondent did not
prove that the restructuring
if at all, was legally permissible;
12.1.4 That the
Applicant had failed dismally to prove that the First Respondent had,
by so restricting (sic), committed an
unfair labour practice as
envisaged by Section 192 (2) of the Labour Relation Act as amended.
12.1.5 This despite
the common cause fact that the Applicant’s previous post was
phased out and replaced by the grade
SBG09 which is a grade higher
than SBG07 as it had added responsibilities to it’. (Sic)
Applicable test on
review:
[13]
The appropriate test which must be applied by a court reviewing the
decision of a commissioner is to be found in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
Navsa AJ stated the test in the following terms;
‘
To
summarise,
Carephone
held that section 145 of the LRA was suffused by the then
constitutional standard that the outcome of an administrative
decision
should be justifiable in relation to the reasons given for
it. The better approach is that section 145 is now suffused by the
constitutional
standard of reasonableness. That standard is the one
explained in
Bato Star:
Is the decision reached by the commissioner one that a reasonable
decision maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair’.
[14]
Various explications of the
Sidumo
test have been explored in countless decisions by this court and the
Labour Appeal Court. An exposition of three of the more recent
Labour
Appeal Court judgments is to be found in an article by Anton Myburgh
SC (
The
LAC’s Latest Trilogy of review judgments: Is the Sidumo Test in
decline?)
[2]
.
The more recent and decisive explication of the Sidumo test is to be
found in
Herholdt
v Nedbank Ltd
[3]
;
where the Supreme Court of Appeal per Cachalia JA restated the test
on review in the following terms;
’
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached
to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence if their
effect is to render the
outcome unreasonable’.
Evaluation:
[15]
As it was correctly pointed out on behalf of the First Respondent, it
is indeed difficult to understand the nature and extent
of the
Applicant’s grounds of review. On the whole, as can be gleaned
from his founding affidavit, supplementary affidavit
and heads of
argument, he appears to be attacking the commissioner’s award
on all grounds contemplated in section 145 (2)
of the Act. Even if he
might have been entitled to do so, at the very least, a basis of that
attack should have been laid. It is
not sufficient for parties in an
application for a review, to simply regurgitate the provisions of
section 145 of the Act and hope
that the court will find something
sustainable to review and set aside an award.
[16]
Since the Applicant had alleged that the Respondent had committed an
unfair labour practice by not appointing or promoting
him to the
newly established position of Team Leader (SBG09), the question in
view of the restated review test in
Herholdt (supra)
is
whether there is any basis for a conclusion to be made that there was
a defect in the arbitration proceedings, which fell within
any of the
grounds envisaged in section 145 (2) of the Act, and if so, whether
the result arrived at by the commissioner can be
said to be
unreasonable.
The legal
framework: Unfair labour practice (appointments and promotion):
[17]
An unfair labour practice is defined in section 186 (2) of the Act to
mean any unfair act or omission that arises between an
employer and
employee involving-
(a)
unfair conduct by the employer relating to
the promotion, demotion, probation (excluding disputes about
dismissals for a reason
relating to probation) or training of an
employee or relating to the provision of benefits to an employee.
[18]
In
SAPS
v SSSBC, Robertson NO and Noonan
[4]
Cheadle
AJ had summarised the principles relating to promotion as follows;
18.1
There is no right to promotion in the ordinary course, only a right
to be given a fair opportunity
to compete for a post. The exceptions
are when there is a contractual or statutory right to promotion.
18.2
Any conduct that denies an employee a fair opportunity to compete for
a post constitutes an unfair
labour practice.
18.3
If the employee is not denied the opportunity of competing for a
post, the only justification for scrutinising
the selection process
is to determine whether the appointment was arbitrary or motivated by
an unacceptable reason.
18.4
The corollary of this principle is that as long as the decision can
be rationally justified, mistakes
in the process of evaluation do not
constitute unfairness justifying an interference with the decision to
appoint.
18.5
Because there is no right to promotion in the ordinary course, the
appropriate remedy, as a general
rule, is to set aside the decision
and refer it back with or without instructions to ensure that a fair
opportunity is given. Since
the interest is the fair opportunity to
compete, it follows that that should be the appropriate remedy rather
than appointing the
applicant to the post (or to a post on equivalent
terms) or to compensate (there being no loss). There are two
exceptions. This
principle does not apply to discrimination or
victimisation cases in respect of which different and compelling
constitutional interests
are at stake. It also does not apply if the
applicant proves that but for the unfair conduct, she would have been
appointed.
[19]
In its heads of argument, the Respondent had correctly pointed out
that employees do not have a right to promotion, and that
the
employer has a right to appoint or promote employees whom it
considers to be the most suitable. In my view, from this proposition,
it is implicit that similarly, employees do not have any
entitlement
to either a promotion or appointment. In the absence of a contractual
or statutory right, only in clear circumstances such as where
the
employer’s discretion was exercised frivolously, capriciously
or unreasonably in not appointing or promoting an employee
(See
Arries
v CCMA and Others
[5]
)
would
arbitrators and the courts interfere with that discretion.
[20]
In his award, the commissioner had identified the issues to be
decided as whether the dispute before him was one of an unfair
labour
practice relating to promotion, and if so whether the employer had
committed an unfair labour practice. The commissioner
had also
acknowledged that it was within the employer’s prerogative to
promote and appoint an employee, and that a determination
needed to
be made as to whether the employer acted unfairly, and whether had it
not been for the unfairness, the employee would
have been promoted or
appointed. To this end, the commissioner was fully aware of the
nature of dispute he had to determine and
the approach he had to
adopt in determining that dispute.
[21]
One of the main complaints the Applicant had raised was that the
commissioner committed gross irregularity by taking into account
the
First Applicant’s version only and not given any consideration
to his version, which in his view was more probable. This
contention
is without substance in that firstly, the Applicant does not state in
what material respects his version was probable.
Secondly, it was
common cause that the First Respondent had closed its case without
calling any witnesses. It is not known which
other version the
Applicant is making reference to as the only testimony before the
commissioner was his own. The mere fact that
a party had closed its
case without having called witnesses does not imply that a
commissioner must of necessity, conclude that
the only version before
him or her is probable, and therefore rule in favour of that party.
Even where the other side had not given
evidence in an opposed
arbitration, a commissioner is still obliged to make findings of fact
based on an assessment of the credibility
and the probabilities or
improbability of the version proffered by that single witness. (See
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others
[6]
and
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and
Others
[7]
)
.
[22]
In this case, the commissioner had assessed the credibility and
reliability of the Applicant’s version and concluded
that as a
witness, the Applicant had fared poorly in that his version was
generally not probable and that he had contradicted himself
on
important aspects of his evidence. In this regard, the commissioner
had found that contrary to the Applicant’s contentions,
a
restructuring process did take place, and that the Applicant’s
contention that he was forced to apply for the position
was without a
basis. The commissioner had also concluded that the Applicant’s
complaints surrounding the use of the Evalex
tool were equally
baseless. The commissioner had described the Applicant as being
verbose, stubborn and argumentative and ultimately
concluded that the
Applicant had on a balance of probabilities, not shown that the First
Respondent had committed an unfair labour
practice.
[23]
In coming to the above conclusions, the commissioner had stated that
it was common cause that the employer had re-organised
the structure
of positions in the workplace. On the other hand, the Applicant
disputed that the First Respondent had restructured.
The basis of the
Applicant’s contention was that the commissioner in his award
had stated that the alleged agreement entered
into with SASBO
relating to the restructuring was not produced and that what the
First Respondent had referred to in the arbitration
proceedings was
merely an “exchange of e-mails between the employer and the
employer”
[8]
(sic).
[24]
In its arguments, the First Respondent submitted that the Applicant’s
contention that there was no restructuring was
incomprehensive,
nonsensical, and incredulous as the position he used to occupy was
made redundant, and that he had applied for
one of the 17 positions
of Team Leader created after the new structure was implemented. As
appears from the record of the arbitration
proceedings, the issue of
the alleged agreement between the First Respondent and SASBO was
dealt with in the context of what appeared
to be a preliminary issue
raised on behalf of the First Respondent at the commencement of the
arbitration proceedings. The commissioner
had dealt with that issue
in the following terms:
‘
My
ruling is simply the following, that the CCMA appears to have to deal
with the matter. The view I take is that firstly, the agreement
has
not been proven before me. Secondly, whether or not the agreement
exists, it seems to me that the Act does not envisage that
the CCMA’s
authority to determine whether either as a result of the
implementation of the agreement of the agreement or as
a result of
any conduct after the implementation of the agreement that the CCMA
should not be able to determine whether any unfairness
in relation to
promotion or demotion occurred’
[9]
[25]
From the above, it is apparent that in determining whether the First
Respondent had committed an unfair labour practice in
not appointing
or promoting the Applicant, the commissioner did not rely on the
existence of an agreement relating to restructuring.
He was on the
whole, satisfied that on the facts, there was a restructuring process
embarked upon which had involved SASBO. The
commissioner had made a
finding in this regard. It is therefore strange for the Applicant to
persist with his claim in this application
that there was no such
restructuring.
[26]
In his founding affidavit, the Applicant had also stated that he was
employed as a Team Leader/ Supervisor on grade SBG07.
A dispute arose
between him and the First Respondent arising from his demotion during
2011. The First Respondent had evaluated
his grade and created a new
grade which was named grade SBG09
[10]
[27]
From these averments, the difficulty faced by the First Respondent in
meeting the Applicant’s case becomes even more
apparent. On the
one hand, the Applicant alleged that there was a demotion, whilst on
the other, he avers that there was an evaluation
of his grade which
entitled him to a promotion in compliance with the First Respondent’s
promotion policy. In the same vein,
he also appears to be challenging
the legality of the restructuring process. From the facts before the
commissioner, the restructuring
process did not merely entail an
evaluation of posts or entitled the Applicant to an automatic
promotion. That process had ended
up with certain posts, especially
those of supervisors being declared redundant, and replaced with new
ones which involved new
job descriptions, grading, and more
responsibilities. There is therefore no substance in the Applicant’s
contention that
the First Respondent was not involved in
restructuring, and the commissioner’s finding in that regard
cannot be faulted.
[28]
The Applicant had further complained that the commissioner had
misdirected himself by making a finding that he (Applicant)
had
failed dismally to prove that the First Respondent had committed an
unfair labour practice. In this regard, the Applicant’s
contention was that it was “common cause that the supervisor
post was phased out and replaced by the team leader post which
had
added responsibilities added to it” (Sic). It is again not
clear on what basis the Applicant contended that the commissioner’s
finding that there was no unfairness is flawed.
[29]
In attempting to make sense of what the Applicant’s complaint
is, it was common cause that after the restructuring process,
17 Team
Leader positions were created. The Applicant was one of the 50
employees who were afforded an equal opportunity to compete
for those
17 positions. It is not known on what basis the Applicant alleged
that he was forced to apply for any one of those posts,
unless he
assumed that he either had a right or was entitled to one of the
posts without going through some form of assessment.
It is further
not known on what basis he had alleged that he was treated unfairly
as having been given an equal opportunity like
other candidates, his
rating was below par on two out of the three assessment criterion. It
does not appear from his grounds of
review or from the arbitration
proceedings that he had challenged the fairness of the assessment
criteria or contended that he
was indeed a better candidate than any
of the successful candidates.
[30]
The only thing that the Applicant sought to challenge as appears from
his heads of argument is the use of the Evalex assessment
tool. In
this regard, he merely contended that there was no evidence placed
before the commissioner that this tool was administered
by competent
people. It was common cause that the Applicant had not placed the
assessment criteria in dispute. It is not known
in what material
respects the use of this tool had prejudiced his chances of
appointment. Even if there is a remote possibility
that the use of
this tool was disadvantageous to him, needless to say, there appears
to be no complaint in respect of the interview
process in which he
fared badly. As has been the case throughout this application, it is
indeed difficult to understand on what
basis the Applicant is
alleging that he was either entitled to a promotion, or at most,
entitled to an appointment over the other
successful candidates.
[31]
It is worth repeating at this stage that employees neither have a
right nor an entitlement to a promotion or appointment to
senior
positions except in those instances identified in
SAPS v SSSBC,
Robertson NO and Noonan (supra).
To hold a contrary view would
result in mediocre and incompetent employees occupying positions they
should otherwise not occupy.
At worst, it would result in a culture
of entitlement which is increasingly becoming pervasive within
workplaces. Employers have
a prerogative as to whom they seek to
promote or appoint as long as that discretion is exercised fairly by
giving that employee
equal opportunities to apply for the post and
also by the use of a fair assessment or recruitment criteria.
Unfairness cannot merely
be established from the fact that an
employee’s expectations of an appointment or promotion were not
met.
[32]
In the light of the above, there is no basis to conclude that the
decision reached by the commissioner is one that a reasonable
arbitrator could not reach on all the material that was placed before
him. The commissioner’s conclusion that the Applicant
had
failed on a balance of probabilities to show that the First
Respondent had committed an unfair labour practice was reasonable
and
therefore unassailable.
Costs:
[33]
This application typifies a long line of cases that should not have
found its way to this court. It is symptomatic of instances
where the
dispute resolution mechanisms of the CCMA and court processes are
wantonly abused by employees who for some obscure reason
feel
entitled to positions either by appointment or promotion without
realising that they have no such entitlement or right. The
CCMA and
this court should not be used as avenues to willy-nilly appoint and
promote employees who have a sense of entitlement
when they cannot
match that with competencies. This court in particular should show
its displeasure at such abuse.
[34]
In considering a cost order, I have taken into account that the
parties still have an on-going employment relationship. This
relationship however becomes insignificant when regard is had to the
conduct of the Applicant in pursuing this application. I have
further
taken into account the commissioner’s view in his award when he
considered a cost order at the stage of arbitration.
In his award,
the commissioner had described the dispute brought by the Applicant
at that stage as “farcical”. It is
at that point and in
view of the commissioner’s strong views on the matter that the
Applicant should have counted stock and
relented. He had however,
remained obstinate and persisted with his self-righteous approach
that he was indeed entitled to the
appointment. It is in the light of
this frivolous and vexatious conduct on the part of the Applicant
that considerations of law
and fairness dictate that a cost order
should follow the results.
Order:
[35]
The Applicant’s application for a review is dismissed with
costs.
_________________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa.
Appearances:
For the
Applicants:
Mr. M Mfungula (Noxaka Mfungula
and Co)
For the
Respondent:
Mr. D Cithi (Mervyn Taback Inc)
[1]
(2007)
12 BLLR 1097
(CC) at para.110
.
[2]
(2013)
34 ILJ 19
[3]
(701/2012)
[2013] ZASCA 97
(5 September 2013)at para.25
[4]
(unreported
P426/08 – 27 October 2010) at para. 41.
[5]
[2006]
27 ILJ 2324 (LC).
[6]
[2011]
4 BLLR 404 (LC).
[7]
[2003]
(1) SA 11 (SCA).
[8]
[at
para 6 of the award]
[9]
[
At p16 and line 5 of the record]
[10]
[at
para 7.1 of the founding affidavit].