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[2014] ZALCJHB 75
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Mlambo v Commissioner of Police: South African Police Service (JR2418/2012) [2014] ZALCJHB 75 (14 February 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Not reportable
CASE NO: D05/2012
In the matter between:
H. N.
NCANE
...........................................................................................
Applicant
and
R. LYSTER
N.O
.......................................................................................
First
Respondent
SAFETY & SECURITY SECTORAL
BARGAINING
COUNCIL
(SSSBC).
...............................................................................
Second
Respondent
THE NATIONAL COMMISSIONER FOR SOUTH
AFRICAN POLICE
SERVICES.
.............................................................
Third
Respondent
S.
KHAMBULE
.......................................................................................
Fourth
Respondent
Heard:
..............
8 January 2014
Delivered:
.........
8
December 2014
JUDGMENT
NEL
AJ
[1] The Applicant seeks the review
and correction of the arbitration award handed down by the Arbitrator
(“the First Respondent”)
dated 2 December 2011 but only
handed down on or about 7 December 2011. The matter before the
Arbitrator concerned the Applicant’s
alleged unfair labour
practice dispute relating to promotion as contemplated by the
provisions of
s186(2)(a)
of the
Labour Relations Act 66 of 1995
.
[2] The Applicant contended that the
Third Respondent (the National Commissioner for the South African
Police Services) had failed
to promote the Applicant from the
position of Warrant Officer to Captain (in respect of post 1337)
being a Captain’s post
at the Wentworth sub-component:
Detective Services.
[3] The Applicant joined the
successful incumbent (“the Fourth Respondent” herein), S.
Khambule, to the proceedings
before the bargaining council.
[4] The Applicant sought the review
of the arbitration award and the correction thereof with the
substitution of the findings
of the Arbitrator with a finding that
the Applicant’s non-promotion was both procedurally and
substantively unfair and accordingly,
that he ought to have been
promoted to the post in issue together with remuneration and benefits
he ought to have received had
he been promoted, from the promotion
date.
[5] The Applicant’s complaints
in the unfair promotion dispute concerned principally the failure by
the Third Respondent
to properly comply with the prescripts of
National Instruction 2 of 2008 concerning promotion.
[6] The Applicant complained further
that the relevant functionaries engaged in the shortlisting and
evaluation process erred,
not only in the screening of his
application by,
inter alia
, failing to recognise that the
Applicant had a relevant degree, but failed accordingly to award him
the appropriate scores for
the degree, diplomas and courses he had
and in particular, to recognise his LLB degree as an honours degree
and according to the
evidence of Chiliza, on behalf of the
Commissioner, to award him a point for such a “bonus”
degree.
[7] The Applicant alleged that the
functionaries in charge of the process had also failed to award the
appropriate scores for
the Applicant’s experience as a Warrant
Officer, in particular considering that he had been promoted to level
7 a year prior
to the successful incumbent (the Fourth Respondent).
[8] The Applicant complained that
the panel had been biased in that it had greeted Khambule in Zulu
before the interview, failed
to ask him similar questions and had
only asked him one (1) question in respect of post 1337 as opposed to
Khambule, who had been
asked two (2) questions.
[9] The Applicant complained that
his challenge to the fairness of his non-promotion was severely
prejudiced or compromised by
the fact that the Third Respondent
failed to comply with the National Instruction 2 of 2008 by,
inter
alia
, failing to ensure that the Secretary to the interview panel
kept a written record of the proceedings, decisions made and the
reasons
for every decision.
[10] The Third Respondent never
produced to the Applicant at the arbitration or at all, the criteria
which was adopted by the
interview panel, the scores to be allocated
to each aspect of the relevant criteria used in assessing applicants
for the post and
the results of the interview panellists application
of that criteria to the applicants for the post/s as well as the
reasons for
their scoring each applicant in the manner in which they
did. There was no evidence of a standard criteria / questions or a
model
answer which had been applied. This did not necessarily mean
that there was not one. The complaint at the arbitration was that the
record was not provided due to non-compliance with the National
Instruction, not that there had never been a standardised criteria
/
model answers and coherent points system to be applied by panellists.
The Applicant contends instead that a negative inference
should be
drawn from the absence of the record, to wit, that the process was
inherently arbitrary or unfair for want of the production
of the
scoring criteria, model answers and points allocated together with
reasons therefor.
[11] The absence of such a record
cannot, in and of itself, result in the inference contended for,
however, inviting that proposition
may be. What it did do, however,
was impact negatively upon the Applicant’s right to ever
challenge the question of his unfair
promotion. At the very least,
the failure of the relevant functionaries to comply with the
provisions of National Instruction 2
of 2008 and in particular
paragraph 4(10)(c) (ii) rendered the Applicant’s non-promotion
procedurally unfair. In the absence
of the record, he could not mount
a full and proper challenge to the question of his non-promotion.
[12] Insofar as the complaint
regarding substantive unfairness is concerned, the evidence of
Chiliza at volume 2 page 68 lines
10 to 25 support the Applicant’s
complaint that the incorrect number of marks were awarded (whatever
criteria the panellists
were in fact using which has not been
established in evidence).
[13] The Applicant ought to have
been awarded at least eight (8) points. He would have obtained five
(5) points for having matric,
an additional point for having a
national diploma, a further point for having his LLB and an
additional point for the detective
courses referenced by Chiliza at
page 68 line 23.
[14] It is also evident that, in all
probability, the interview panellists did not correctly score the
Applicant in respect of
his promotion to level 7 in 1999 as opposed
to the Fourth Respondent who was promoted in 2000 or consider his
experience in respect
of the field of the Captain’s post.
[15] I am not satisfied that the
greeting of the Fourth Respondent in Zulu evidenced any biased on the
part of the panel. I am
also not satisfied that the questions asked
were not similar. Although the Fourth Respondent was asked regarding
the re-arrest
procedures to be followed from a Captain’s
perspective and the Applicant those re-arrest procedures from a
Detective’s
point of view, the difference in the vantage point
from which those questions were to be answered is insufficient to
result in
a material non-compliance or a finding that the decision
was arbitrary or irrational.
[16] In relation to the question
concerning changes Khambule or the Applicant would make in order to
transform service delivery
in the station, it is correct that the
Applicant’s question related to the FSC cases, but this again
was not sufficient to
render the entire decision of the panellists
arbitrary on that ground.
[17] In the absence of evidence
concerning the criteria against which all applicants were assessed,
the model answers which were
expected by the panellists or the method
of assessment insofar as points allocation was concerned, and how
those points were allocated
and the reasons therefor, which would
have been available had the panellists complied with National
Instruction 2 of 2008, there
is no proper evidential basis capable of
being established by the Applicant to prove that the decision of the
panellists was arbitrary
or capricious and accordingly that, on a
substantive basis, the Applicant ought to have been promoted above
Khambule. This is not
the Applicant’s fault and notwithstanding
the fact that he bears the onus, as the documentation was simply not
available
to him due to the Third Respondent’s non-compliance.
[18] The evidence available on the
record, however, is sufficient to determine that the Applicant’s
promotion was procedurally
unfair and given the clear incorrect
application of the points (based on Chiliza’s concessions), at
the very least, the Applicant
would have scored on a par with the
Fourth Respondent.
[19] It does not appear that he was
thus on this basis afforded a fair opportunity to compete with the
Fourth Respondent. The
Applicant’s non-promotion was
accordingly also substantively unfair.
[20] I am satisfied in accordance
with the authority of
Herholdt v Nedbank Ltd
2013 (6) SA 224
(SCA), the First Respondent failed to apply his mind properly to the
evidence before him and in particular, by failing to have
regard to
the evidence which I have highlighted hereinbefore. Had the First
Respondent properly applied his mind to that evidence,
a reasonable
decision maker would have come to no other conclusion other than that
the process was procedurally unfair for want
of compliance with
National Instruction 2 of 2008, and was substantively unfair based on
Chiliza’s evidence concerning the
allocation of points.
[21] The finding by the First
Respondent accordingly that there was no evidence that the points
were not allocated correctly,
does not accord with the evidence
before him. I am satisfied accordingly, that the award is reviewable
but that it should be substituted
with a finding that the Applicant
is entitled to compensation.
[22] Given the fact that I am
unable, on the evidence before me, to state that the Applicant ought
to have been preferred to the
Fourth Respondent, I cannot afford him
relief in the form of the protected promotion he seeks. The only
appropriate relief, in
the circumstances, is compensation for the
Applicant. In this regard, I consider it fair and equitable that the
Applicant be awarded
five (5) months compensation calculated at the
rate of his remuneration as per the date of the arbitration award,
being 11 December
2011.
[23] The Third Respondent is
directed to pay the Applicant’s costs.
____________________________
NEL
A J
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv S
For
the Respondent: