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[2013] ZALCD 31
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Health and Other Service Personnel Trade Union of SA (HOSPERSA) and Another v Public Health and Welfare Sectoral Bargaining Council and Others (D678/09) [2013] ZALCD 31 (20 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
No: D678/09
Reportable
DATE:
20 DECEMBER 2013
In
the matter between:
HEALTH
AND OTHER SERVICE
PERSONNEL
TRADE UNION OF SA C
(HOSPERSA)
...........................................................................................................
First
Applicant
MOLOANTOA
PETRUS
SEETA
....................................................................
Second
Applicant
And
THE
PUBLIC HEALTH AND WELFARE
SECTORAL
BARGAINING
COUNCIL
........................................................
First
Respondent
KATE
MATABOGE
N.O.
...........................................................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
RESPONSIBLE
FOR HEALTH:
NORTH
WESTERN
PROVINCE
................................................................
Third
Respondent
ERIC
BATSIETSENG
................................................................................
Fourth
Respondent
Heard: 20
August 2013
Delivered: 20
December 2013
Summary:
Review
of award – unfair labour practice relating to promotion –
a consideration of further dimensions after the interview
process not
unfair in the circumstances.
JUDGMENT
CELE,
J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act,
1
the Act, for an order reviewing and setting aside an award by the
second respondent, sitting in her capacity as an arbitrator
under the
auspices of the first respondent. The issue to be determined by the
second respondent (“the arbitrator”)
was whether failure
by the third respondent (“the employer”) to appoint the
second applicant employee to fill an advertised
post of “Nursing
Manager: Operational” amounted to an unfair labour practice in
the form of unfair conduct by the employer
relating to promotion as
contemplated by section 186(2) (a) of the Act. The arbitrator had to
determine whether the process of
selection was fair and whether, as a
result, the second applicant had been fairly excluded from the
appointment. The employer opposed
the application.
Factual
Background
[2]
The second applicant, Mr Seeta was in the employment of the third
respondent, hereafter referred to as the Department or the
employer,
as from 1 December 1998, as a Professional Nurse. At the time
material to this matter, he held the position of a Chief
Professional
Nurse, the CPN, working as a clinical professional nurse at a clinic
run by the employer. The Department advertised
the position of a
Nursing Manager which Mr Seeta applied for together with a number of
other candidates. He met the set requirements
as a result of which he
was among the six candidates identified for a job interview. At the
end of the interview process, he topped
all the interviewed
candidates with the score of 76. 5. The next highest candidate was
the fourth respondent who scored 71.5. At
the time of the interviews,
the fourth respondent was employed by a gold mining company and was
therefore an external candidate,
as opposed to the internal candidate
Mr Seeta.
[3]
The interviewing panel recorded that its assessment indicated that:
3.1
Eric Batsietseng (fourth respondent) was “well conversant with
the services, procedures and monitoring with a matured
and broad
spectrum of management issues”; that “he answered 3 out
of 4 questions very intelligently and confidently
although he was not
knowledgeable with clinic supervision”.
3.2
Mr Seeta was “presently working at Matlosana Sub-District
Tigane CHC as a clinical professional nurse”; and that
he
“seemed unsure but managed to answer questions correctly, only
need (sic) to be groomed for confidence and firmness”.
[4]
The panellists decided to consider two more factors, in addition to
the score. These were the performance evaluation results
for
2007/2008 and the leave record for 2008. These factors were then used
to determine the best candidate between Mr Seeta and
the fourth
respondent. Mr Seeta’s performance evaluation results
considered were of 52% and those of the fourth respondent
were of 4.1
out of 5. On the leave issue, Mr Seeta was found to have taken 17
days of unplanned leave while the fourth respondent
had 12 days
leave. In the final analysis, the fourth respondent was found to be
the most suitable candidate for the post and a
recommendation for his
appointment was made and later he was appointed against the contested
post.
[5]
Mr Seeta was aggrieved by a failure of the Department to appoint him,
which would have been a promotion to him and he referred
an unfair
labour practice dispute which had arisen for conciliation and later
for arbitration. The second respondent was appointed
by the first
respondent to arbitrate the dispute. The Department called and led
the evidence of two witnesses being the Chairperson
of the
interviewing panellists, Ms Abrams. She was the Assistant Director:
Community Health Services of the Department. The second
witness was a
Local Area Manager in the Department, Ms Tebogo, to whom reported the
Facility Managers. Ordinarily, Mr Seeta reported
to a Facility
Manager but had an occasion to report to Ms Abrams when the post of a
Facilitation Manager was vacant. Mr Seeta was
the only witness for
his case. The second respondent found no unfair labour practice to
have been committed by the Department and
she dismissed the claim.
Chief
findings of the second respondent
[6]
The latter part of the award contains the second respondent’s
chief findings which are fairly brief and may be quoted
directly as:
‘
It
is trite law that as substance is concerned (i.e. the reason why an
employer ultimately decides to prefer one employee to others)
an
arbitrator should exercise the difference to an employer's
discretion. (See in this regard Marra v Telkom SA Ltd (1999) 20 ILJ
1964 (CCMA).) If the employee is suitable for promotion, the employer
retains discretion to appoint whom it considers to be the
best
appointment to suit the employer's operational needs. In this case
the respondent saw it fit to appoint an external candidate
because he
was seen as the best candidate.
Abrams’
version must therefore succeed. It must further succeed not only
because it was unchallenged but because even if it
was, the
Respondent would have acted discriminatory against the other
candidate if it appointed the applicant based on the fact
that he was
internal even if he did not meet the requirements of the interview.
In
his closing argument, the applicant averred that the Respondent did
not disclose the three dimensions mentioned in the interview
on its
advertisement. Assessing this argument from a different perspective,
even if the Respondent made the disclosure, the applicant
would still
not have qualified because his leave would still have been
considered, his performance as well as the overall score
scored which
formed the basis of the three dimensions mentioned supra. The other
candidate on the other hand, would still have
been the recommended
candidate based on the same criterion.
Lastly,
by confirming that the Respondent’s questions were fair and
practical can only that the Respondent’s conduct
was actually
fair. If the interview was fair the Respondent’s conduct was
fair.’
Evidence
on the additional dimensions
[7]
The evidence of Ms Abrams was that the panellists considered three
dimensions, being the score, the annual assessment results
and the
leave profile once they had two competing candidates, after the
elimination of the four. Mr Seeta, although he scored high
during the
interview, on the second dimension being the annual assessment he
appeared to be a moderate performer with only marginal
performance
with a total score of 53%. The fourth respondent had a score of 4.1
against 5, which in percentage works out to about
80%. She said that
on the leave profile he had a total of 17 days of absenteeism, while
the fourth respondent had 14 days’
absence. The final result
was that the fourth respondent came out as the best candidate.
[8]
As to why the Department decided on the additional dimensions apart
from the interview results, she said that the practice was
resorted
to because, in senior positions there was a need to have someone who
would have to lead by example, that is, somebody
that would always be
there. She said that it was the first time that they had interviews
for senior managers and that a similar
practice was adopted after the
interviews for the post of a Chief Accounting Clerk, a senior
position, where, after the interview,
the scores were even. She
denied that the practice was not in existence and was followed only
to eliminate a particular candidate,
more so as there was the
comment,” knowing Mr Seeta very well, most of his leave was
unplanned.” She denied that it
was unfair to use the practice,
maintaining that in senior position the practice had to be followed.
She knew of only one day that
Mr Seeta took as an unpaid leave. As to
how the fourth respondent took his leave, she said it was written in
the leave record provided.
She said that if Mr Seeta had lesser score
than the fourth respondent but had a good leave profile and a good
performance record,
Mr Seeta would have been appointed.
[9]
Mr Seeta testified and said that he was the second in charge at the
clinic and was, therefore, involved in the smooth running
of the
clinic. He took his year leave in February. In the event that a staff
member was sick or had a sick child or relative, they
would telephone
the office before 10h00 and would bring the sick note later. He did
the same. Sometime in 2007, he wrote a letter
asking to be relieved
of supervisory duties because of personal problems that he was going
through at the time, stating also that
he was not enjoying
supervising people. At his initiative, he utilised the Employment
Assistance Programme (EAP). He went to consult
a Departmental
psychologist. His supervisor did not come with any intervention plan.
At the time of the interview, he was a supervisor
and was enjoying
it.
[11]
When his immediate supervisor resigned, Ms Tebogo came to the clinic
and held a meeting with staff members. She called for
a vote by a
show of hands for the election of their supervisor. At the time, he
was the assistant supervisor and the election system
took him by
surprise.
[12]
He said that he came to the job interview prepared. The questions
that were asked were fair as they related to the job that
he was
doing. He did not know that after the interview there would be other
dimensions considered. He felt that he should have
been told of that
practice and so implementing the practice was unfair as it was not
catered for in the Public Service Act.
Grounds
for review
[13]
In his founding affidavit, Mr Seeta averred that the second
respondent failed to appreciate the nature of the enquiry she was
asked to determine and that she failed to apply her mind to the
proper questions raised for her consideration in that:
13.1
The criteria used by the selection panel had not been explained to
the candidates before hand;
13.2
No precise and objective methods were used by the panel to evaluate
the candidates in respect of the criteria that were used
and
13.3
That, in respect of the objectives, the explanation was necessary
especially in a situation where an internal candidate was
compared
with an external candidate.
[14]
The further contention was that the second respondent ought to have
taken steps to have the fourth respondent joined as a party
to the
proceedings, as his suitability to the post was called to question
and therefore that he had a direct and substantial interest
in the
dispute. Further submissions as appear in the supplementary affidavit
averred that the second respondent failed to appreciate
the nature of
the enquiry she was asked to determine in that:
14.1
The minutes of the interviewing panel revealed the procedure that had
to be followed up to the allocation of points for each
candidate;
14.2
Once that was done, the process threw up an obvious choice of who
scored considerably higher than the next rated contender.
14.3
There was no need for the process to be taken further. That was more
so when the written comments of the panellists were considered;
14.4
It was not clear why the panel decided, only at that late stage, to
amplify the criteria it would consider by holding over
its decision
until it could study the performance evaluation results for 2007/2008
and the leave record for 2008 for each of the
two contenders. The
minute did not show why it decided to act in that manner. A plausible
inference was that, at least one of the
panellists was seeking
additional material that would justify the non-appointment of Mr
Seeta despite his being the highest scoring
candidate. A reasonable
arbitrator would have explored this consideration.
14.5
In making a selection to fill a post in the Public Service, the
selection panel was not free to choose whatever criteria it
wanted
but had to be guided by section 11 of the Public Service Act
(Proclamation no 103 of 1994) and regulation D.5 of the Public
Service Regulations.
14.6
While the performance evaluation results for 2007/2008 might arguably
be a legitimate criterion that fell within the ambit
of section 11
(1) (b) and regulation D.5 the leave record for 2008 was not a valid
criterion.
Opposition
to the review application
The
condonation application
[15]
The law on the factors to be considered in a condonation application
is trite.
2
The answering affidavit was filed some 40 days out of time for which
lateness the Department seeks condonation. The applicants
did not
oppose the application. The reason for lateness, being that the
instruction to counsel was misfiled at the North West Bar
and when
the papers were received back by the State Attorney from the
Advocates’ Chambers, the required deponent to the answering
affidavit was on leave with the result that the duly deposed
answering affidavit was only sent back to the State Attorney from
the
Department on 5 January 2011. Characteristic of this matter by this
time, inordinate delays had already been occasioned at
the hands of
the applicants. Seen in this light, therefore, while the reason is
not a plausible one, seen in context of the progress
of the matter,
it is a satisfactory one. A brief reflection on the grounds of
opposition to the review application is informative
that there
reasonably good prospects of success. There are no other
considerations that negate the granting of condonation. Condonation
for the late filing of the answering affidavit is granted.
Non-joinder
of the fourth respondent
[16]
The contention was that Mr Seeta did not in his dispute referral seek
his appointment to the specific contested post in which
the fourth
respondent had already been appointed but merely sought an
appointment at a similar seniority/salary level. Also, in
argument at
the arbitration, Mr Seeta’s representative requested that he be
appointed in a reserved position with all the
benefits applicable to
the position of nursing manager. It was submitted that in view of the
relief sought by the applicants at
the arbitration, the fourth
respondent was not a necessary party to the arbitration proceedings
and his joinder was certainly not
required as a matter of law.
Accordingly, that purported ground for review ought to be rejected.
Selection
Criteria
[17]
The submission was that in her award, the second respondent
succinctly captured the essence of the issue in dispute, namely,
whether the failure of the Department to appoint Mr Seeta as opposed
to Mr Batsietseng caused the Department to have committed
an unfair
labour practice. It was never the applicants’ case at the
arbitration hearing that the Department was by law precluded
from
using the three main selection criteria in question. More
specifically, it had not been put to any of the applicants’
witnesses at the arbitration, that additional main selection criteria
were added “belatedly” in order to disqualify
or
eliminate Mr Seeta. In fact, not even Mr Seeta testified that the
Department had acted arbitrarily or had an ulterior motive
in using
the selection criteria in question. At best for Mr Seeta, a bald
submission was made in closing argument that the Department
deviated
from a previous recruitment and selection policy, which alleged
policy was not placed in evidence before the second respondent.
[18]
It was averred that an applicant in a review application might not,
for the first time on review, raise a point which did not
properly
serve before the arbitrator. Only jurisdictional challenges might be
raised for the first time on review and the applicant’s
belated
submissions regarding the lawfulness of the selection criteria
employed by the Department did not constitute a jurisdictional
issue,
but purely related to the alleged unfairness of the appointment of
the fourth respondent. It was submitted that this Court
was precluded
from considering these submissions, which had neither been put to the
Department’s witnesses at the time nor
was it placed before the
second respondent in any other manner, who was, accordingly, likewise
precluded from dealing therewith
at the time of the award.
[19]
Alternatively and in the event of the Court finding that the
applicants were permitted to, at this belated stage, contend that
the
work attendance record of a candidate for employment was unlawful
based on section 11(2)(b) of the Public Service Act and/or
Regulation
VII/D.5, then and in that event, the Department submitted that:
1.
The application of the work attendance records of the candidates was
applied objectively and consistently not only to the candidates
concerned, but also in other cases involving recruitment.
2.
The dimensions were not prohibited in terms of the Act and
Regulations as they constituted “valid criteria” and were
“competence/efficiency/suitability” based.
[20]
A further submission was that, in arbitrating the matter, the second
respondent clearly applied her sense of fairness to the
applicant’s
contentions raised at the arbitration, as she was enjoined so to do.
Analysis
[21]
This application has been brought in terms of section 158 (1) (g) of
the Act which to the extent relevant reads:
‘
The
Labour Court may subject to section 145, review the performance or
purported performance of any function provided for in this
Act on any
grounds that are permissible in law.’
[22]
Then, section 145 to which section 158 (1) (g) refers, (as
paraphrased for present purposes) provides that:
‘
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to
the
Labour Court for an order setting aside the arbitration award.
(2)
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.
[23]
The first respondent bargaining council as is evident from its very
name is a public sector bargaining council dealing with
the Health
and Social Development Sector. Section 37(5) of the Act provides
that:
‘
A
bargaining council established in terms of subsection (2) has
exclusive jurisdiction in respect of matters that are specific to
that sector and in respect of which the State as employer in that
sector, has the requisite authority to conclude collective agreements
and resolve labour disputes.’
[24]
In their submissions, the applicants have placed reliance on
regulation VII.D.5 which reads:
‘
The
selection committee shall make a recommendation on the suitability of
a candidate after considering only-
(a)
information based on valid methods, criteria or instruments for
selection that are free from any bias or discrimination;
(b)
the training, skills, competence and knowledge necessary to meet the
inherent requirements of the post;
(c)
the needs of the department for developing human resources;
(d)
the representativeness of the component where the post is located;
and
(e)
the department's affirmative action programme.’
[25]
Mr Seeta has made it clear in his evidence that he is not challenging
the interview process up to when he emerged as the highest
scoring
candidate. According to him, it was unfair to take the process any
further and therefore in so doing the Department committed
an unfair
labour practice. The nub of the complaint lies in the consideration
of the leave record for 2008. He has said that it
was arguable
whether the annual performance assessment fell within the ambit of
the requirements set out in section 11 (1) (b)
and regulation VII.
D.5.
[26]
The onus to prove the unfair labour practice complained of lay on Mr
Seeta. It cannot be doubted that the annual performance
assessment
falls within the ambit of the requirements set out in regulation VII.
D.5. (b), which provision refers to various factors,
such as the
training, skills, competence and knowledge necessary to meet the
inherent requirements of the post. The concession
by Mr Seeta was,
accordingly, well made. A need of the Department to develop human
resources depends largely on the ability of
the candidates for
training to attend such training consistently and without undue
interruptions. Put differently, once the training
programme has been
set up, the staff to be trained must avail themselves, otherwise the
programme stands to be interrupted at the
risk of losing Departmental
funding which comes from tax payers. It must follow from this that
the leave profile is a valid method
or part of the criteria or
instruments for selection. In that even, it lay at the door of Mr
Seeta to prove that a resort to such
criteria was bias or
discriminatory.
[27]
In his evidence, Mr Seeta did not testify as to a resort to the leave
profile per se was bias or discriminatory. All that he
wanted was to
have the interview stage as being the last process. It must follow
from this approach that had the leave profile
and the annual
performance assessment results been available and considered just
before the scoring process, he would have had
no issue with the
process. In that event, he would probably have not emerged as the
highest scoring candidate. The fourth respondent
would probably be
the successful candidate. While commenting on the test for
reviewability in the Sidumo and Another v Rustenburg
Platinum Mines
Ltd and Others,
3
the Labour Appeal Court in Fidelity Cash Management Service v CCMA
and Others,
4
stated:
‘…
there can be no doubt now under Sidumo
that the reasonableness or otherwise of a commissioner’s
decision does not depend –
at least solely – upon the
reasons that the commissioner gives for the decision. In many cases
the reasons which the commissioner
gives for his decision, finding or
award will play role in the subsequent assessment of whether or not
such decision or finding
is one that a reasonable decision-maker
could or could not reach. However, other reasons upon which the
commissioner did not rely
to support his or her decision or finding
but which can render the decision reasonable or unreasonable can be
taken into account.’
[28]
In this matter as well, other reasons upon which the second
respondent did not rely to support her decision or finding but
which
can render the decision reasonable or unreasonable can be taken into
account. On the three dimension approach adopted by
the panellists,
Mr Seeta has not succeeded in showing that unfair labour practice has
been committed. This finding goes against
all three submissions made
on behalf of Mr Seeta in the founding affidavit and in the
supplementary affidavit on this issue. As
correctly pointed out by
the Department, the joinder of a party is the prerogative of the
applicant, depending on the relief sought.
In this case, Mr Seeta did
not specifically seek to unseat the fourth respondent. This ground
must suffer the same fate as others.
[29]
More specifically, and as submitted by the Department, it had not
been put to any of the applicants’ witnesses at the
arbitration, that additional main selection criteria were added
“belatedly” in order to disqualify or eliminate Mr
Seeta.
In fact, not even Mr Seeta himself testified that the Department had
acted arbitrarily or had an ulterior motive in using
the selection
criteria in question. At best for him, a bald submission was made in
closing argument that the Department deviated
from a previous
recruitment and selection policy.
[30]
In the circumstances, the following order shall issue:
1.
The condonation application for the late filing of the answering
affidavit is granted, with no order as to costs.
2.
The review application in this matter is dismissed.
3.
No costs order is made.
Cele
J
Judge
of the Labour Court.
APPEARANCES
For
the Applicant: A L Christison
Instructed
by: Llewellyn, Cain Attorneys
For
the Third Respondent: M G Hitge
Instructed
by: The State Attorney, Mafikeng.
1
Act
No 66 of 1995.
2
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at
532C-F
.
3
(2007)
28 ILJ 2405 (CC) at para 110.
4
(2008)
29 ILJ 964 (LAC), at para 102.