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[2014] ZALCJHB 124
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NEHAWU obo Manyana and Another v Masege NO and Others (JR363/2012) [2014] ZALCJHB 124 (8 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: JR 363/2012
In the matter between:
NEHAWU obo MANYANA &
1
OTHER Applicants
and
KEHEDITSE MASEGE
N.O. First
Respondent
GENERAL PUBLIC
SERVICES SECTORAL
BARGAINING
COUNCIL Second
Respondent
DEPARTMENT OF LOCAL
GOVERNMENT
AND HOUSING,
GAUTENG Third
Respondent
Heard:
18 January 2014
Delivered:
08 April 2014
Summary:
Bargaining Council arbitration proceedings – Review of
proceedings, decisions and awards of arbitrators
– Test for
review – determinations of arbitrator compared with evidence on
record – arbitrator’s award
regular and sustainable –
award upheld
Bargaining
Council arbitration proceedings – Review of proceedings,
decisions and awards of arbitrators – assessment
of evidence
and legal principles by arbitrator – assessment and
determination reasonable – award upheld
Unfair
labour practice – promotion – principles applicable to
promotion disputes – determination as to the requirements
for
establishing unfair labour practice for promotion – duties of
employer considered - arbitrator properly applying legal
principles
applicable to determination of unfair labour practice dispute
relating to promotion
Unfair
labour practice – promotion – employees failing to make
out case of unfair conduct on the part of the employer
– no
unfair labour practice found to exist – award of arbitrator
sustainable and review application dismissed
Unfair
labour practice – employment equity considerations –
absence of employment equity plan – employer still
entitled to
have regard to general employment equity considerations even in the
absence of a plan
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter concerns an application by the applicants to review and
set aside an arbitration award of the first respondent in
her
capacity as an arbitrator of the GPSSBC (the second respondent). This
application has been brought in terms of Section 145,
as read with
Section 158(1)(g), of the Labour Relations Act
[1]
(“the LRA”).
[2]
This matter concerned an unfair labour practice dispute as
contemplated by section 186(2)(a) of the LRA. The applicants
contended
that the two individual applicants should have been
appointed into certain vacant positions, by the third respondent as
their employer,
which appointment would constitute a promotion. When
the individual applicants were not so promoted, the applicants then
pursued
an unfair labour practice dispute concerning this failure to
promote them to the second respondent as the applicable bargaining
council. The matter came before the first respondent for arbitration,
pursuant to which arbitration proceedings the first respondent
determined that the applicants had failed to establish that the
failure by the third respondent to promote the individual applicants
constituted an unfair labour practice and dismissed the applicants’
case. It is this determination by the first respondent
that forms the
subject matter of the review application brought by the applicants,
which application was timeously filed on 20
February 2012.
[3]
As part of the pleadings, the applicants also filed a notice in terms
of Rule 22 to amend the citation of the second respondent
from being
the CCMA as reflected in the original review application to that of
being the GPSSBC. It was clear to me that the reference
to the CCMA
by the applicants in the original review application was simply an
administrative error. Attached to the original review
application was
the arbitration award, which clearly emanated from the first
respondent as arbitrator of the GPSSBC. No prejudice
of any kind can
result from simply amending the citation to reflect the true state of
affairs. There was also no record of any
objection being made by any
of the respondents to the proposed amendment. Therefore, and insofar
as it may be required, I amend
the citation of the second respondent
to that of the GPSSBC, as recorded above.
Background facts
[4]
The two individual applicants, Philip Manyana and Tshediso Lebelo,
were both existing employees of the third respondent and
at the time
when the events giving rise to these proceedings arose were employed
as assistant directors, which was a level 10 position
in the third
respondent. There was never any issue or dispute about the individual
applicants’ work performance or the manner
in which they
discharged their duties in the third respondent.
[5]
The events giving rise to this matter arose following a decision by
the third respondent to “regionalise”, meaning
that the
third respondent divided itself into 4 regions, namely Johannesburg,
Tshwane, Ekurhuleni and West Rand. This regionalisation
led to
particular project manager positions being moved out into these
regions, which positions were in effect created as new and
vacant
positions. A total of 8 project manager positions became available in
these 4 regions as a result of the regionalisation.
The third
respondent then embarked upon a recruitment process to fill these
project manager positions in the regions. At issue
in this instance
is the three project manager positions based in Johannesburg.
[6]
On 16 April 2008, the third respondent advertised these regional
manager positions, inviting applications. It is also pointed
out that
these were level 12 positions and would clearly be promotional
positions for the individual applicants. The individual
applicants
each applied for one of these project manager positions in
Johannesburg. The individual applicants were short listed
for the
positions, following their applications, along with 10 other
incumbents. All the short listed incumbents were interviewed
on 12
September 2008 by an interview panel.
[7]
The interview panel considered Mr Manyana to be the most suitable
candidate of all the incumbents interviewed and recommended
him for
one of the positions. Similarly, Mr Tshediso Lebelo was considered to
be a suitable candidate and also recommended for
one of the
positions. The two individual applicants in fact scored the highest
in the interview process, being 127 and 129 respectively.
There can
be no doubt that the two individual applicants were fully qualified
and suitable for the positions, and should appointments
have actually
been made into these positions, they would be the proper candidates
to be actually so appointed.
[8]
It was, however, equally clear that a recommendation by the interview
panel was not an appointment into the position or any
kind of
approval of such appointment being made. In terms of the third
respondent’s recruitment and selection policy, the
interview
panel has the responsibility of only making what is defined as a
“considered recommendation” to the relevant
delegated
authority actually approving the appointments. This policy further
prescribes that in any selection, the Employment Equity
Act must be
considered. The policy also specifically records that the interview
panel is not the decision-maker for appointments.
The policy does
provide for the situation that where the recommendations of the
interview panel are not approved, reasons must
be provided for this.
Finally, any actual appointment that is made must be done in the form
a written offer of employment which
must be accepted by the employee.
[9]
In line with the above process, the interview panel drafted a report
which dated 18 September 2008, following the completion
recruitment
and interview process. In this report, it was recorded that because
the positions were level 12 positions, the power
to approve the
filling of these positions vested only with the head of department.
The report was prepared for the very purpose
of obtaining approval
from the head of department to fill the three vacant project manager
positions for Johannesburg. The report
concluded by recommending that
approval be granted for the two individual applicants to fill vacant
project manager posts.
[10]
The report containing the recommendation for the approval of the
appointment of the individual applicants, despite being dated
18
September 2008, was only actually presented for approval, in terms of
the documentary evidence, on 11 February 2009. Unfortunately
for the
individual applicants, this recommendation and their appointment was
never approved by the head of department. As such,
the individual
applicants were actually never appointed into these positions. The
documentary evidence shows that despite the recommendation
by the
interview panel and in March 2009, the regional head Johannesburg,
the director: human resource management, the chief director:
corporate service and the deputy director general all did not support
the recommendation.
[11]
In fact, and in a handwritten annotation to the request for approval,
the deputy director general records that the positions
be put in
abeyance because of financial challenges and an EE plan should first
be made available to show how equity targets are
going to be
achieved. The regional head: Johannesburg, also submitted a written
report (reasons), which was dated 13 March 2009,
for not supporting
the recommendations of the interview panel for the appointment of the
individual applicants and this report
was then ascribed to by all the
other approving authorities referred to above, in equally not
supporting the recommendations. These
reasons provided by the
regional head: Johannesburg, were that the recommendations failed to
have proper regard to equity considerations
(in particular the
appointment of females), and that at the time, the vacant posts were
still unfunded and as a result no new posts
could be filled until
there was budget approval for this.
[12]
The issue has another nuance. It appears that in November 2008, a
moratorium was placed on the filling of any vacant positions
in the
department. In executive management meetings on 2 and 13 February
2009, it was confirmed that this moratorium still existed.
This
situation was further confirmed in circular 1 of 2009, dated 25 March
2009. Then, and in a further memorandum dated 24 July
2009, the
moratorium issued in November 2008 and February 2009 was again
confirmed, pending the finalisation of a merger between
the
Department of Local Government and the Department of Housing. This
memorandum of 24 July 2009 specifically recorded that all
previous
recruitment processes relating to the filling of vacancies in the
department were declared to be null and void until the
completion of
the new structure in the new merged department. This finally negated
any prospect of the approval of the appointment
of the two individual
applicants in the project manager positions in terms of the 2008
recruitment process referred to above.
[13]
It was also undisputed that the individual applicants never received
written offers of employment for the project manager positions,
as
the applicable conclusion to any successful recruitment and
appointment process.
[14]
The individual applicants remained employed in their current
positions, referred to above and this continued to be the case
into
2010. The individual applicants did contend that they did the work of
project managers but conceded that their actual appointments
never
changed. Then, and only in August/September 2010, which is more than
a year after they were recommended for appointment by
the interview
panel, the individual applicants raised a grievance about the fact
that they were not appointed into the project
manager positions. The
gist of these grievances were that they were still awaiting feedback
on the appointments following the interview
process, that they were
actually doing the work of project managers and that they wanted
information on the issue of the moratorium
on the filling of posts
(i.e. when would it end). These grievances were not resolved to the
satisfaction of the individual applicants,
who then decided to pursue
the dispute as an unfair labour practice dispute to the second
respondent.
[15]
This matter, on the facts, then has one last twist. It appears that
the recruitment, and selection and appointment process
with regard to
the project manager positions in Ekurhuleni and West Rand had been
completed much more expeditiously. In the documentary
evidence there
was an actual offer of employment for a project manager position in
West Rand issued to one Glenda Sambo (“Sambo”)
on 19
September 2008. This was clearly one of the project manager positions
initially advertised, as set out above. The applicants
contended that
this appointment of Sambo whilst the individual applicants were not
appointed established some or other form of
inconsistency by the
third respondent, which according to the applicants was unfair. What
was, however, undisputed was that this
appointment of Sambo that was
made, was actually made before the imposition of the November 2008
moratorium and the appointment
of Sambo was an appointment of a
female.
[16]
The unfair labour practice case of the individual applicants was that
they should have been promoted into the project manager
positions and
that the reasons given for not appointing them were simply not valid
considerations insofar as it related to their
particular cases, as it
simply did not apply to them. As stated, the applicants also
contended as part of their case that the appointment
of Sambo
illustrated inconsistency on the part of the third respondent.
[17]
The first respondent ultimately determined that the individual
applicants did not have a right to being promoted, that their
appointments had never been approved, and that the considerations of
employment enquiry, financial constraints and the imposed
moratorium
were all valid and proper considerations that applied to the
appointment of the individual applicants. The first respondent
also
concluded that the appointment of Sambo did not create any issue of
inconsistency, as it was not unfair and distinguishable.
The first
respondent found that there is no basis to interfere with the third
respondent’s decision not to appoint the individual
applicants
and consequently that no unfair labour practice was committed by the
third respondent towards the individual applicants.
This
determination of the first respondent then gave rise to the current
proceedings before me.
The relevant test
for review
[18]
I intend to make a few short comments about the appropriate test for
review in the current matter. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa,
AJ held that in the light of the constitutional requirement (in s 33
(1) of the Constitution) that everyone has the right
to
administrative action that is lawful, reasonable and procedurally
fair, and that ‘the reasonableness standard should now
suffuse
s 145 of the LRA’. The majority of the Constitutional Court set
the threshold test for the reasonableness of an award
or ruling as
the following: ‘Is the decision reached by the commissioner one
that a reasonable decision-maker could not reach?’
[3]
Following on, and in
CUSA
v Tao Ying Metal Industries and Others,
[4]
O'Regan J held:
‘
It is clear...
that a commissioner is obliged to apply his or her mind to the issues
in a case. Commissioners who do not do so are
not acting lawfully
and/or reasonably and their decisions will constitute a breach of the
right to administrative justice
.’
[19]
The
Sidumo
review
test was applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[5]
and the Court, as to what would be considered to be unreasonable for
the purposes of this test, said:
[6]
‘…
It seems
to me that… there can be no doubt now under
Sidumo
that
the reasonableness or otherwise of a commissioner's decision does not
depend - at least not 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 a
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.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.’
[20]
In applying this review test, the SCA in
Herholdt
v Nedbank Ltd and Another
[7]
concluded as follows:
[8]
‘
In summary, the
position regarding the review of CCMA award is this: A review of a
CCMA award is permissible if the defect in the
proceedings fall
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 the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.’
What
the Court was saying is that if the arbitrator ignored material
evidence, and in considering this material evidence together
with the
case as a whole, the review court believes that the arbitration award
outcome cannot now be reasonably sustained on any
basis, then the
award would be reviewable.
[21]
Following the judgment of the SCA in
Herholdt
,
the Labour Appeal Court has now in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[9]
again interpreted and applied the
Sidumo
review
test and held as follows:
[10]
‘
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator.… In other words, in a case such as the
present,
where a gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator misconceived
the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the decision that
the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the available material.’
The
Court concluded:
[11]
‘
In short: A review
court must ascertain whether the arbitrator considered the principal
issue before him/her, evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable to justify the decision
he or she arrived at.’
[22]
Therefore, the first step in a review enquiry is to consider and
determine if a material irregularity indeed exists. A review
court
determines whether such an irregularity exists by considering the
evidence before the arbitrator as a whole, as gathered
from the
review record and comparing this to the content of the award and
reasoning of the arbitrator as reflected in such award.
The review
court must also at this stage apply all the relevant principles of
law in order to determine what indeed constituted
the proper evidence
that the arbitrator, as a whole, would have had to consider. If the
review court, in conducting this first
step, enquiry should find that
no irregularity exists in the first instance, the matter is at an
end, no further determinations
need to be made and the review must
fail.
[23]
Should the review court, however, conclude that a material
irregularity indeed exists, then the second step in the review test
follows, which is a determination as to whether if this irregularity
did not exist, this could reasonably lead to a different outcome
in
the arbitration proceedings. Put differently, could another
reasonable decision-maker, in conducting the arbitration and arriving
at a determination, in the absence of the irregularity and
considering the evidence and issues as a whole, still reasonably
arrive
at the same outcome? The review court, in essence, at the
second stage of the review test, takes the proper evidence as a
whole,
as ascertained from the review record, considers the relevant
legal principles and decides whether the outcome that the arbitrator
arrived at could nonetheless reasonably be arrived at by another
reasonable decision-maker, even if it is for different reasons.
The
end result always has to be an unreasonable outcome flowing from an
irregularity, for a review to succeed.
The
reasoning of the arbitrator
[24]
The first respondent, as arbitrator, firstly found that the onus was
on the applicants to show that an unfair labour practice
with regard
to promotion was perpetrated by the third respondent on the
individual applicants. The first respondent accepted that
as a matter
of law, where an internal candidate was able to demonstrate that the
new position would increase his or her salary,
responsibility and/or
status, it would constitute a promotion and the internal candidate
would be entitled to protection under
the unfair labour practice
jurisdiction under the LRA. The first respondent accepted that the
case was properly before her as an
unfair labour practice.
[25]
In the deciding the issue of the unfair labour practice, the first
respondent accepted that both the individual applicants
applied for
the regional managers’ positions in Johannesburg, which was a
promotion, being a grade 12 position, and that
the interview panel
recommended their appointment. The first respondent also accepted
that one female candidate had been appointed
to a regional manager
position in a different region (referring to Sambo).
[26]
The first respondent held that the reasons given why the individual
applicants were not appointed were that the third respondent
had to
consider employment equity considerations relating to gender, there
were budget constraints, there was an implemented moratorium
on the
appointments and, lastly, that the merger of the Departments of
Housing and Local Government still had to be completed.
The first
respondent reasoned that the mere fact that employees qualified for
and were recommended for a position does not mean
that it was an
unfair labour practice if they were not actually appointed. The first
respondent held that the employees (individual
applicants) had to
show that the employer’s reasoning for not appointing them was
defective. The first respondent then dealt
with the four reasons
given, so as to determine if this reasoning was indeed defective.
[27]
In dealing with the employment equity issue, the first respondent
accepted the applicants’ case that there was no actual
employment equity plan in place at the time of their consideration
for the positions. The first respondent, however, concluded
that the
absence of an employment equity plan does not mean that an employer
cannot consider general employment equity requirements.
The first
respondent concluded that the absence of an employment equity plan
does not nullify the considerations of employment
equity in fact
relied on by the third respondent. The first respondent concluded
that there was nothing defective in the third
respondent applying
this as a reason for not appointing the individual applicants.
[28]
The first respondent in her reasoning also referred to the HR Plan,
which specifically contained equity requirements and which
was
introduced in 2008. The applicants contended that this plan was
irrelevant because it was introduced only after their interviews
had
been concluded. The first respondent, however, found that it was
introduced at the time when the appointment process had not
yet
finalised and thus was applicable. The first respondent concluded
that to accept the argument of the applicants, that the HR
plan had
to be ignored, would mean that the third respondent would have to act
contrary to its own strategy as it existed at the
time when making
the actual appointments, which could not be correct.
[29]
The first respondent then dealt with the issue of budget constraints.
The first respondent analysed the documentary evidence
and concluded
that budget constraints was indeed a consideration and a valid one.
Together with this issue, the first respondent
considered the issue
of the moratorium on appointments, which the first respondent held to
be in line with the PFMA and concluded
that the failure to make the
appointments due to budgetary constraints was neither arbitrary nor
capricious.
[30]
The first respondent also had regard to the applicants’ case
that the moratorium did not apply to their appointments
as it was
issued after their interviews and recommendation for appointment into
the positions had been concluded. The first respondent
accepted that
the moratorium was applicable before any approval of the appointment
of the two individual applicants had been made.
The first respondent
also referred to the fact that the moratorium in fact specifically
nullified all previous recruitment processes.
The first respondent
held that she could not see how the individual applicants could be
appointed without consideration of the
moratorium and thus the
conduct of the third respondent in considering the moratorium was not
irregular.
[31]
The first respondent then turned to the final reason, being the
department merger. The first respondent found that the moratorium
also applied because of this merger and as this moratorium nullified
all previous recruitment efforts and processes, which would
include
that involving the two individual applicants, there was nothing
unjustified in not filling the positions at a later stage.
The first
respondent found that the suspension of the filling of the positions
was retrospective and this was a valid consideration
in not approving
the appointment of the individual applicants.
[32]
The final part of the applicants’ case was then the
inconsistency issue. As stated above, the applicants’ case
in
this regard related to the appointment of Sambo in another region in
the position of project manager. The first respondent found,
firstly,
that each region had its own budget and as such the budgetary issues
of another region cannot be used to establish an
unfair labour
practice for the Johannesburg region. The first respondent, however,
did find that whilst it may be argued that this
appointment of Sambo
can possibly be considered to be inconsistent
per se
, this
issue was nonetheless insufficient to warrant a deviation from her
earlier views, based on the fact that the reasons for
the
non-appointment of the two individual applicants was distinguishable
from that of Sambo.
[33]
Based on the above reasoning, the first respondent then concluded
that the failure by the third respondent to approve the appointment
of the two individual applicants in the project manager positions for
Johannesburg was not an unfair labour practice.
Merits of the
review
[34]
The applicants have raised several grounds of review, which I will
now deal with only insofar as it is necessary. For the reasons
set
out hereunder, it is not necessary to deal with each and every ground
of review raised by the applicants and where I do not
specifically
deal with a ground of review raised by the applicant in their
founding affidavit, it must be accepted that I did not
consider it
necessary to determine or refer to it.
[35]
The first ground of review I wish to deal with is a contention by the
applicants that the first respondent was biased. According
to the
applicants, the first respondent exhibited bias for the following
reasons: (1) the first respondent found that the applicants
had the
onus to prove the existence of an unfair labour practice; (2) the
first respondent favoured the third respondent when it
came to cross
examination of witnesses; and (3) the first respondent interfered
with answers given by the individual applicants
when testifying. The
applicants also contend in support of their bias argument that the
first respondent “misrepresented”
the issue placed before
her, whatever this may mean.
[36]
I intend to immediately dispose of the ground of review of alleged
bias on the part of the first respondent. This ground of
review has
no merit at all. Firstly, it is trite that as the proceedings are
unfair labour practice proceedings, the applicants
have the onus in
establishing the existence of an unfair labour practice.
[12]
In
Department
of Justice v Commission for Conciliation, Mediation and Arbitration
and Others,
[13]
the Court said:
‘…
. An
employee who complains that the employer's decision or conduct in not
appointing him constitutes an unfair labour practice
must first
establish the existence of such decision or conduct. If that decision
or conduct is not established, that is the end
of the matter. If that
decision or conduct is proved, the enquiry into whether the conduct
was unfair can then follow. This is
not one of those cases such as
disputes relating to unfair discrimination and disputes relating to
freedom of association where
if the employee proves the conduct
complained of, the legislation then requires the employer to prove
that such conduct was fair
or lawful and, if he cannot prove that,
unfairness is established. In cases where that is intended to be the
case, legislation
has said so clearly. In respect of item 2(1)(b)
matters, the Act does not say so because it was not intended to be
so.’
The
first respondent’s application of the issue of the onus is thus
correct, and such finding therefore cannot substantiate
any
allegation of bias on her part.
[37]
I have also considered the typed transcript of the arbitration so as
to establish whether there was any undue interference
by the first
respondent in the arbitration proceedings and with the testimony of
witnesses. Significantly, the applicants have
filed no supplementary
affidavit as contemplated by Rule 7A(8) so as to provide specific
examples of this mere and bald contention,
once the record had been
filed. In my consideration of the typed transcript of the
arbitration, I could find no undue interference
by the first
respondent in the arbitration proceedings. In fact, her actual
participation in the arbitration was minimal. In particular,
I could
find no support in the record to substantiate the kind of conduct the
applicants complained of in the founding affidavit
as having been
perpetrated by the first respondent. In fact, the transcript shows
that the parties were free to present their respective
cases as they
deemed fit, and ask the questions they deemed appropriate of the
witnesses. I hasten to add that the re-examination
of the individual
applicants by the applicants’ union representative went far
beyond what would normally have been permitted
in conducting
re-examination, so, if anything, the first respondent was very
lenient towards the applicants. There is simply
nothing that
becomes apparent from the transcript of the proceedings which could
remotely convince me that the first respondent
conducted herself in a
manner that could be seen to be biased. I can therefore find no
irregularity that exists insofar as it relates
to this ground of
review of the applicants.
[38]
The applicants also raise as a ground of review that the first
respondent did not issue her award in 14 days. This ground of
review
is based on the provisions of section 138(7) which reads:
‘
Within 14 days of
the conclusion of the arbitration proceedings - (a) the
commissioner must issue an arbitration award with
brief reasons,
signed by that commissioner….’
The
arbitration proceedings took place on 10 November 2011, and were
concluded on that date, which means the 14 day time limit expired
on
25 November 2011. The applicants do not in their founding affidavit
state exactly when they received the arbitration award but
I note
from the arbitration award attached to the review application that
there is a telefax transmission report at the top of
the document
dated 11 January 2012, which I shall accept as the date when the
award was received by the applicants. This means
that the first
respondent rendered her award some 47 days outside the 14 day time
limit referred to. The question now is –
does this failure
render the award invalid or in some way irregular?
[39]
Soon after the current LRA came into effect, this very issue came
before Landman J (as he then was) in the matter of
Free
State Buying Association Ltd t/a Alpha Pharm v SA Commercial Catering
and Allied Workers Union and Another,
[14]
and the learned Judge specifically considered the question of what is
the status of an award which is issued out of time. The Court
said
the following:
[15]
‘
Section
138
of the
Labour Relations
Act
66 of 1995
does not make provision for an extension of the time within which to
issue an arbitration award. In my opinion
s 138(7)
(a)
insofar as it relates to the signature and issuing of the arbitration
award, is intended to be more of a guideline. It is not intended
to
be peremptory. It is quite clear that having regard to human nature a
commissioner may not always be able to sign and issue
an award within
the 14-day period. If a commissioner were to sign or to issue the
award after that period, it would not be in accordance
with the aims
of this Act to visit such an omission with invalidity. If that were
to be done it would simply mean that the dispute
had not reached
finality and the arbitration proceedings would have to take place de
novo. This could not have been intended.’
I fully agree with this
reasoning.
[40]
Similarly, and in
Waverley
Blankets v Commission for Conciliation, Mediation and Arbitration and
Others
[16]
the Court considered a situation where an arbitrator had waited six
months to render his award. The Court held as follows:
[17]
‘
In matters where
arbitration awards were rendered late it appears that the attitude
adopted by the Labour Court was that the provisions
contained in
s
138
of the LRA were intended to be guidelines and not imperative. In
other words, that the non-compliance with the time-limits contained
in
s 138
of the Act need not result in the proceedings being rendered
a nullity. The court has, however, held that there are exceptions in
circumstances where an award is issued so late that different
consequences may follow.’
Based
on the lengthy delay of six months, the Court said:
[18]
‘
The long delay in
itself is not an irregularity which would result in the proceedings
becoming null and void (see para [11] supra)
but it compounded other
shortcomings in the award which of necessity were the result of such
a long delay. The long delay resulted
in a failure on the part of the
arbitrator to apply his mind to the evidence.’
[41]
I wish to make final reference in this respect to the following
dictum in the judgment of
Standard
Bank of SA Ltd v Fobb and Others,
[19]
which I fully agree with and where the Court had said:
‘
The time limits in
this context are a guideline and not peremptory. I say so, firstly,
because peremptory treatment can lead to
absurdity. Secondly, it is
not in the interests of litigants, the public and the national
interest to rehear arbitrations for no
reason but the fact that the
award is issued outside the time limit. Thirdly, it would conflict
with the object of the LRA to resolve
labour disputes effectively. In
the nature of arbitration awards are issued late. If they are a
nullity and no effect can be given
to them, then the referral for a
fresh arbitration would not be an effective, expeditious solution.’
[42]
Accordingly, there is no merit in the ground of review raised by the
applicants concerning the award not having been rendered
in 14 days.
Based on the principles set out above, it is my view that the 14 day
time limit provisions in
section 138(7)
is not peremptory but
directory, and non-compliance with such time limit does not taint the
award with irregularity or invalidity.
Of course, and the longer the
delay in furnishing the award, the more likely it would be to contend
that the arbitrator was unable
to bring his or her mind properly to
bear on the facts, as was the case in
Waverley Blankets
.
Whether the arbitration award is capable to be handed down in 14 days
is also dependent on the scope and extent of the matter,
the duration
of the arbitration proceedings, the complexity of the matter and
other justified extraneous factors such as the occurring
of the
traditional December holiday season at the time when the award is
due.
In casu
, the mere fact that the award was given outside
the 14 day time limit thus does not render it irregular or
reviewable. I
also do not consider the delay of about one and
half months to be unduly lengthy, considering the intervening
December holiday
season. The issues before the first respondent were
fairly complex and certainly required proper and detailed
consideration. In
addition, and as far as arbitration awards go, the
arbitration award of the first respondent is also fairly detailed.
Finally,
and if I compare the first respondent’s reasoning as
set out in the award to the actual evidence on record as a whole,
there
is simply no indication that the delay had any consequence of
the first respondent being unable to apply her mind properly to the
evidence. I therefore reject this ground of review raised by the
applicants.
[43]
I will now deal with the applicants’ grounds of review relating
to the findings of the first respondent on the merits,
insofar as it
is necessary to do so. As I have set out above, and in a nutshell,
there were four reasons for the appointment of
the individual
applicants into the positions not being approved, being the
employment equity consideration, the budget constraints,
the
moratorium, and the merger of departments. The proper question before
the first respondent was twofold, firstly, whether these
reasons had
substance in the first place (in other words were valid reasons) and
secondly, whether the application of these reasons
was in the
circumstances of the current matter unfair towards the individual
applicants.
[44]
Before I deal with these reasons, something must be said about the
nature of the applicants’ case that the applicants
actually
sought to present. It was undisputed that the third respondent
complied with its own internal recruitment and placement
procedure in
conducting the recruitment processes relating to the filling of the
positions. It was equally never an issue that
the two individual
applicants were properly interviewed, properly considered and then
recommended by the interview panel for approval
to be appointed in
the positions. It also appeared to be common cause that if the
appointments into the positions were actually
effected, the two
individual applicants would have been appointed. The case of the
applicants was permeated with the contention
that because of all of
this, they were entitled and had the right to be appointed
per se
,
into the positions. Of course, and if the applicants had established
that the individual applicants indeed had a right to be so
appointed,
that would have been the end of the matter and the failure to appoint
the individual applicants would certainly be an
unfair labour
practice, simply because the infringement of this right would
necessarily be unfair. The question, however, is whether
the
applicants proved the existence of such a right?
[45]
In argument before me, the applicants ultimately conceded that the
individual applicants had no right to be promoted. This
concession
was properly made. On the evidence, it was clear, in terms of the
provisions of the recruitment and selection policy
itself that the
short listing, interview and recommendation by the interview panel of
a candidate for appointment does not entitle
the candidate as of
right to be appointed. It is specifically defined that the purpose of
the interview panel is to determine and
recommend suitable
candidates. The decision to actually appoint what may be recommended
as a suitable candidate by the interview
panel at all times remains
vested in the head of department or delegated authority.
In casu
,
and because the project manager positions were level 12 positions,
ultimate approval by the head of department was an imperative.
The
interview panel report dated 18 September 2008 itself confirms the
aforesaid. It is specifically recorded in this report, with
regard to
the individual applicants, that “In view of the above it is
suggested that approval be granted to appoint ….
to the vacant
posts of project manager….’ (referring to the individual
applicants) It is clear that the aforesaid
events can never be
considered to be an actual appointment made or create a right to be
appointed. It is simply a motivated suggestion
for approval to be
granted for the appointment by the head of department. What then
unfortunately happens is that approval was
actually declined by all
the relevant authorities in the third respondent, including the
department head. The individual applicants
conceded in evidence that
this was indeed the case and that their appointments were never
approved. It is, therefore, my conclusion
that on the facts, there
simply has been no case made out that the individual applicants had
any right to be appointed into the
project manager positions. Insofar
as the applicants may have relied on the individual applicants having
a right to be appointed
as project managers, such a case had to fail,
and the first respondent in effect properly so determined.
[46]
Now it is true that even if an applicant in an unfair labour practice
dispute relating to a promotion cannot show that a right
exists
entitling the applicant to promotion, the failure to promote, even in
the absence of such a right, can still be unfair.
As the Court said
in
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
:
[20]
‘…
. An
employee who wants to use the unfair labour practice jurisdiction in
s 186(2)
(a)
relating to promotion or training does not have to
show that he or she has a right to promotion or training in order to
have a
remedy when the fairness of the employer's conduct relating to
such promotion (or non-promotion ) or training is challenged….’
What
an applicant in an unfair labour practice dispute relating to
promotion thus has to show, in the absence of a right to promotion
being established, is that the conduct of the employer in failing to
promote the employee was unfair.
[47]
When deciding what constitutes unfair conduct in the context of
promotions, the issue of management prerogative remains of
critical
importance. In
Provincial
Administration Western Cape (Department of Health and Social
Services) v Bikwani and Others,
[21]
it was held as follows:
‘
There is
considerable judicial authority supporting the principle that courts
and adjudicators will be reluctant, in the absence
of good cause
clearly shown, to interfere with the managerial prerogative of
employers in the employment selection and appointment
process.
So too
in
George
v Liberty Life Association of Africa Ltd
(1996)
17 ILJ 571
(IC) the Industrial Court held that an employer has a prerogative or
wide discretion as to whom he or she will promote or transfer
to
another position. Courts should be careful not to intervene too
readily in disputes regarding promotion and should regard this
an
area where managerial prerogatives should be respected unless bad
faith or improper motive such as discrimination are present.’
I fully ascribe to this
reasoning and
in casu
and for the reasons set out hereunder,
no unfair conduct by the third respondent which could justify
interference with its decision
making was remotely shown to exist by
the applicants.
[48]
Where it comes to considering whether the conduct of the third
respondent in failing to approve the appointment of the individual
applicants into the positions was unfair, the applicants’
unfairness case has a significant difficulty, from the outset.
This
difficulty is that when this matter came before the first respondent,
the positions were still vacant and no appointments
in respect of
such positions had been approved. No actual appointment had been made
by the third respondent into these positions.
It may well happen into
the future that the third respondent may fill these positions and if
that is the case, and the two individual
applicants are then not
appointed, then they may well have a case of unfair conduct on the
part of the third respondent, considering
the recommendations and
report of the interview panel. However, and as matters stand, with no
appointments actually being made
by the third respondent, a
moratorium on appointments continuing to exist, and with no
established right to be appointed, the failure
to appoint the
individual applicants simply cannot be considered to be unfair
conduct by the third respondent. In
Department
of Justice,
[22]
the Court dealt with a situation comparative to the matter
in
casu
,
and said:
[23]
‘
The PSA and Mr
Bruwer accepted that the post had not been filled on a permanent
basis and conducted their case in the arbitration
on that basis and
on the basis that Mr Bruwer could still be appointed to the post. In
the light of this the PSA and Mr Bruwer
could only succeed in the
arbitration if they showed that it was of particular significance
that Mr Bruwer be appointed at a specific
time (prior to 1 August
1997) and that, once he had not been appointed at that particular
time, the fact that he could still be
appointed to the post on a
permanent basis later was either irrelevant or was not good enough
since the unfairness flowing from
his non-appointment at a particular
time could not be undone if he was appointed later. The PSA and Mr
Bruwer failed to do so.’
The fact is that based on
the above reasoning in
Department of Justice
, the applicants
had to show that the failure to actually appoint the individual
applicants at about the time when the recommendation
was made by the
interview panel was an imperative to ensure fairness to the
individual applicants and that any subsequent appointments
that may
later be made was simply not good enough to ensure fairness still
existed. Similar to the situation in the judgment in
Department of
Justice
, the applicants
in casu
made out no such case. In
fact, the
status quo
remained for more than a year before the
individual applicants took issue with their non appointment, and this
delay in my view
would certainly dispel any contention that an
immediate appointment at the time of recommendation was an imperative
to ensure fairness.
There was simply nothing before the first
respondent to indicate that a failure to appoint the individual
applicants immediately
in February/March 2009 was unfair, especially
considering that when the matter came before the first respondent,
none of the posts
in Johannesburg had been filled and the moratorium
still applied.
[49]
It is also apparent that the applicants’ case never was that
the third respondent acted unfairly by implementing a moratorium
or
considering budget and equity considerations per se. The applicants
never contended that the third respondent was not entitled
to
consider and apply such considerations. What the applicants contended
was that the considerations of employment equity did not
apply to
them because there was no equity plan in place when they were
recommended for the positions. The applicants then contended
that the
moratorium did not apply to their appointments because it only came
into existence after they were interviewed and recommended
for
appointment. Finally, the applicants contended that there indeed a
budget to substantiate the positions of which they were
recommended.
What is thus clear from the case of the applicants is that there is
no challenge to the validity and fairness of these
considerations
per
se
as grounds for not filling the positions. What is in issue is whether
these considerations actually find application
in
casu
specifically to the recruitment process and appointment
recommendation of the individual applicants. Therefore, the reasons
relied
on by the third respondent not to approve the appointments
must be accepted to be valid and fair reasons and all that must be
decided
if whether these reasons found application in the case of the
individual applicants. As the Court said in
Department
of Justice
,
in dealing with a concession by the employee party in that matter
that the employer had the prerogative to decide whether or not
to
fill a post and that there was no unfairness in the decision to
decide to postpone the filling of the post:
[24]
‘
In the light of
the concession by Mr Bruwer, it would not have been permissible for
the commissioner to conclude that the department
did anything wrong
or unfair when it decided to postpone the filling of the post and to
have it re-advertised, especially because
Mr Bruwer could still be
appointed to the post afterwards. I would have thought that this
concession by Mr Bruwer would have marked
the end of any case based
on the fact that the department postponed the filling of the post and
re-advertised it.’
In
my view, this reasoning would equally apply
in
casu
.
In addition and in the memorandum of 24 July 2009, which was issued
more than a year prior to the applicants actually proceeding
to
challenge the failure to appoint the individual applicants,
[25]
it was specifically recorded that all previous recruitment efforts
towards the filling of vacancies in the department were declared
to
be null and void until the completion of the merger of the
department. This can only mean that once this merger is completed,
the recruitment processes would start again and the individual
applicants could be considered again in the normal course, which
must
surely mark the end of any unfair labour practice case only brought
in 2010 by them.
[50]
I also wish to deal specifically with the evidence relating to the
moratorium on appointments in the third respondent and its
applicability to the individual applicants. It was undisputed that
this moratorium came into effect in November 2008. There was
no
evidence that any appointment had been made in contravention of this
moratorium after it had been implemented. The one candidate
appointed
to a project manager position in another region (being the
appointment of Sambo) was appointed end September/beginning
October
2008, before the moratorium came into effect. The November 2008
moratorium was also confirmed in the business unit meeting
held on 2
February 2009. The individual applicants conceded in evidence in the
arbitration that they were at all relevant times
aware of the
existence of the moratorium, which was implemented, using the words
of the individual applicant Lebela, “later
in 2008”. The
only basis for the contention of the individual applicants that the
moratorium did not apply to them was based
on the fact that they
applied for appointment in 2008 prior to the moratorium being
implemented and were interviewed in September
2008 prior to the
moratorium being implemented. Whilst this is true, it simply cannot
detract from the actual applicability of
the moratorium to the
appointment of the individual applicants. Once again and as I have
set out above, applying for a position
and being interviewed does not
entitle the individual applicants to anything unless the individual
applicants could show that the
advertising of the positions, the
consideration of candidates for short listing, or the actual
interview process, was in some or
other way irregular or unfair and
this was never the case of the individual applicants. Added to this
and crucially, the individual
applicants were only recommended for
approval of appointment by the interview panel on 11 February 2009,
which was after the implementation
of the moratorium in November 2008
and the confirmation thereof in the meeting of 2 February 2009.
Therefore, the moratorium, as
a matter of fact, applied directly to
the appointment of the individual applicants.
[51]
The actual application of the moratorium to the appointment of the
individual applicants and considering the contents of the
memorandum
of July 2009 where all prior recruitment activities for vacant
positions were declared to be null and void until the
department
merger had been concluded, had to be the death knell to the case of
the individual applicants. For this reason alone
and despite all
other reasons given, the non appointment of the individual applicants
was fair and justified and there is simply
no need to consider or
determine any of the other reasons given by the third respondent for
not appointing the individual applicants.
The applicants, in 2010,
simply had no unfair labour practice case to pursue, which case in my
view was still born from the outset.
[52]
I, however, need to say something about the employment equity
considerations, which was one of the reasons considered by the
third
respondent in declining to approve the appointment of the individual
applicants and which reason was specifically dealt with
by the first
respondent in her award. It was in the end undisputed that the third
respondent did not have an employment equity
plan in place when this
reason to decline approval of the appointment of the individual
applicants was provided. Despite this being
the case, I must agree
with the first respondent where she says that even in the absence of
an employment equity plan, the third
respondent remained entitled to
have regard to equity considerations. I may point out that the EEA
formed part of the legislative
framework within which the third
respondent’s recruitment and selection policy was drafted. In
the introduction to this policy,
it is recorded that ‘the
Department aims to recruit the best staff in order to develop and
maintain standards consistent
with its vision, mission and employment
equity policy….’ Similarly in paragraph 5 of this
policy, it is recorded that
the third respondent supports and
practices employment equity by affording preferential treatment to
suitably qualified applicants
from designated groups and giving
special attention to under-represented designated groups. I also
agree with the first respondent’s
reasoning as to the
application of the HR policy, referred to above. All of the
aforementioned clearly contemplates equity considerations,
which, if
regard is had to the content of the report by the interview panel in
respect of the Johannesburg project manager positions,
seems not to
have been considered or addressed. In this regard, I make reference
to the following
dictum
from the judgment in
Department
of Justice
:
[26]
‘
In any event the
department's decision not to fill the post permanently in 1997 and
1998 but to re-advertise it and see whether
in due course the
department might not attract other candidates who could compete for
this position with the then present candidates
including Mr Bruwer
was vindicated because the department gave a person from a
disadvantaged group an opportunity to act in the
position and in time
he performed very well and, as we were told during argument, was
subsequently appointed to the post. This
was somebody who had been
excluded by the policies of apartheid from getting this kind of
experience at the time that Mr Bruwer
got it. How else other than by
giving him an acting opportunity could the department have discovered
someone from a disadvantaged
group who could prove that he could
perform well in this post? There is no other way! The postponement of
the permanent filling
of the post served a laudable cause which was
the intention behind it in the first place.’
[53]
In any event, and as a matter of law, the absence of an employment
equity plan cannot stand in the way of an employer nonetheless
applying considerations relating to employment equity when deciding
whether to make appointments, which,
in
casu
,
and on the reasoning provided by the third respondent at the time,
related to the under-representation of black females. In
Willemse
v Patelia NO and Others,
[27]
the Court equally dealt with a similar situation where there was no
employment equity plan. The Court said the following:
[28]
‘
Obviously, an
employment equity plan is helpful as a framework within which to
determine the fairness of an employer's discriminatory
decisions when
it purports to make appointments, or refuses to make them, in
furtherance of the employer's employment equity objectives.
In view
of the potential discriminatory nature of affirmative action
measures, it is of course important, when one has to assess
whether
such discrimination as may have been perpetrated by an employer in
pursuit of affirmative action goals, was fair or not,
for a reviewing
court to see exactly how and in terms of what the employer exercised
its discretion. In this process one of the
issues to be determined
will be whether the employer had interpreted its own employment
equity policies and plans properly. Affirmative
action measures
should not be applied in an arbitrary or unfair manner. Where an
employer, like in the present instance, fails
and/or refuses to
promote an employee by reason of promoting representativity levels
from designated groups, then, if that employer
had no employment
equity plan whatsoever, it may be very difficult to determine whether
such discrimination as it may have perpetrated
in its refusal to
promote an employee constituted unfair discrimination or not. Whilst
the DEAT did not have a formal employment
equity plan at the time the
acting director-general refused the recommendation to promote Dr
Willemse, the evidence before the
arbitrator did disclose that the
DEAT was operating within a framework of policy statements as well as
targets with reference to
its employment equity goals and objectives…
I am therefore satisfied that the fact that the DEAT did not have an
employment
equity plan as required by the EEA, does not in and by
itself render the refusal to promote Dr Willemse unfair. I also do
not believe
that the absence of an employment equity plan is in and
by itself a cause of action when dealing with the question whether
the
employer committed an unfair labour practice relating to its
failure or refusal to appoint or promote an employee…’
What
the Court held in
Willemse
is in effect exactly what the first respondent said in her award. I
am compelled to agree. It was always a part of the third respondent’s
recruitment and selection framework to apply employment equity
considerations and of particular relevance to the mater
in
casu
,
to give preferential treatment to under-represented parts of
designated groups. Simply put, the applicants’ case that the
absence of an employment equity plan rendered invalid and irregular
any employment equity considerations in deciding not to appoint
the
individual applicants has no foundation in law and falls to be
rejected.
[29]
[54]
Equity considerations are a legitimate criteria in conducting
selections for appointment in any event, and I refer to
City
of Tshwane Metropolitan Council v SA Local Government Bargaining
Council and Others
[30]
where the Court said the following:
‘
Which criteria are
used will depend on factors such as the employer's operational needs,
organizational values, human resources
policy, resources it is
willing to devote to recruitment, the number of candidates it might
have to consider for each vacancy,
and such like considerations,
which generally are not prescribed by law.’
[55]
This then only leaves the issue of the appointment of Sambo in
September/October 2008 to consider. According to the applicants,
this
showed that the third respondent was guilty of inconsistency, so to
speak. I cannot agree with this contention of the applicants.
From
the outset, the appointment of Sambo is distinguishable on the facts
and in particular for two critical reasons. Firstly,
as the
individual applicants themselves even conceded in the arbitration,
Sambo was appointed before the implementation of the
moratorium.
Secondly, the recommendation of the interview panel that Sambo be
appointed was actually approved, where that of the
individual
applicants was not. Another consideration would be the equity
considerations referred to above, especially, considering
that one of
the reasons for the non approval of the individual applicants was
specifically the issue of the appointment of black
females due to
equity considerations and Sambo was a black female. In this respect,
the third respondent certainly behaved consistent
to its own
reasoning. Added to these distinctions of fact, the individual
applicants were in any event compelled to prove that
the appointment
of Sambo coupled with their non-appointment was based on
mala
fide
,
capricious, discriminatory or grossly irregular conduct by the third
respondent. This was never proven by the individual applicants.
The
individual applicants seem to say that simply because Sambo was
appointed in a project manager position, advertised as part
of the
same basket of project manager positions the individual applicants
also applied for and with the individual applicants not
equally being
so appointed, this is
per
se
inconsistent conduct justifying interference. This approach of the
individual applicants is clearly flawed. Mere differentiation
does
not establish inconsistency and more must be shown to exist by the
individual applicants to justify interference, as I have
said above.
As the Court said in
Arries
v Commission for Conciliation, Mediation and Arbitration and
Others:
[31]
‘
As far as the
applicable law is concerned, I believe that the commissioner
correctly approached the matter before him, namely in
the first
instance, as he put it, treading warily. He further was correct in
approaching the matter, in essence, on the basis of
making a
determination whether the third respondent's refusal to promote Ms
Arries was: on the basis of its having acted on the
basis of some
unacceptable, irrelevant or invidious comparison on the part of the
third respondent; or that its decision was arbitrary,
or capricious,
or unfair; or that they failed to apply their mind to the promotion
of Ms Arries; or that the third respondent's
decision not to promote
Ms Arries was motivated by bad faith; or that it was discriminatory.
All of these aspects
which the commissioner clearly had in mind in reaching his conclusion
are in my view in essence a proper search
by the commissioner to
determine whether the third respondent's discretion was exercised
capriciously, or for insubstantial reasons,
or based upon any wrong
principle or in a biased manner.’
Based
on what I have already set out above, I fully agree with this
reasoning in
Arries
, which in my view can be directly applied
to the current matter. There is simply no evidence to indicate that
the appointment of
Sambo and the non appointment of the individual
applicants is based on any of the considerations as set out in the
Arries
judgment. No inconsistency justifying interference has
thus been established by the individual applicants.
[56] I, therefore,
conclude that the first respondent simply committed no irregularity
as contemplated by the review test I have
set out above, in
determining that the failure by the third respondent to approve the
appointment of the two individual applicants
into the project manager
positions in the Johannesburg region, did not constitute an unfair
labour practice. The first respondent
properly appreciated the
enquiry she was required to make and clearly understood what was
needed to establish unfair treatment
of the individual applicants as
required by the unfair labour practice provision relating to
promotion. The first respondent’s
reasoning is certainly
reasonable and proper and, consequently, entirely sustainable.
Conclusion
[57] Therefore, and
having regard to what I have set out above with regard to the merits
of the applicants’ review application,
and based on the
application of the review test as I have also set out above, I
conclude that the first respondent’s award
and reasoning simply
does not constitute any irregularity. The first respondent properly
considered all material evidence, properly
and rationally construed
and applied the relevant legal principles, and provided proper
reasons for the conclusion that she came
to. Because I have found no
irregularity to exist in this instance, no further determination as
to a reasonable outcome needs to
be made and the applicants’
review application must fail.
[58]
The first respondent’s award, therefore, must be upheld and her
conclusion that the third respondent committed no unfair
labour
practice towards the two individual applicants must be sustained and
I, accordingly, so determine.
[59] In dealing with the
issue of costs, both parties asked for an award of costs. I consider
that the first respondent’s
award was a clear, concise and a
properly reasoned award and it should have been apparent to the
applicants that their review case
had no merit. As I have referred to
above, the case of the applicants simply never had any merit from the
outset. I also consider
that the individual applicants and the third
respondent are still in an employment relationship and there equally
exists an ongoing
relationship between the third respondent and the
applicant union but I do not believe that in the circumstances this
is sufficient
to mitigate against the granting of a costs order
against the applicants, especially considering that the applicants’
case
never had any merit. In thus exercising my wide discretion I
have in terms of the provisions of
sections 162(1)
and (2) of the
LRA, where it comes to the issue of costs, I do believe a costs order
against the applicants is appropriate.
Order
[60]
In the premises, I make the following order:
1.
The applicants’ review application is dismissed with costs.
____________________
Snyman AJ
Acting Judge of the
Labour Court
APPEARANCES:
For the Applicants:
Mr
K Nchaupe – Union
official NEHAWU
For the Third
Respondent: Advocate P Nkhutha
Instructed
by:
Malebye Motaung Mtembu Inc Attorneys
[1]
Act No 66 of 1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Id
at para 110.
[4]
(2008)
29
ILJ
2461
(CC)
at para 134.
[5]
(2008)
29 ILJ 964 (LAC).
[6]
Id
at para 102.
[7]
2013 (6) SA 224
(SCA)
per
Cachalia and Wallis JJA.
[8]
Id
at para 25.
[9]
[2007] ZALC 66
;
[2014]
1
BLLR 20
(LAC)
,
per Wag
lay
JP.
[10]
Id
at para 14.
[11]
Ibid
at para 16.
[12]
See
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
Others
(2013) 34 ILJ 1156 (LC) at para 19 ;
National
Commissioner of the SA Police Service v Basson and Others
(2006) 27 ILJ 614 (LC) at para 7 ;
Trade
and Investment SA (Association Incorporated Under Section 21) and
Another v General Public Sector Bargaining Council and
Others
(2005) 26 ILJ 550 (LC) at para 17 ;
SA
Commercial Catering and Allied Workers Union on behalf of Skosana
and Others v Triptra (Pty) Ltd t/a Denneboom Station Pick
'n Pay
(2013)
34 ILJ 3356 (CCMA) at para 48 ;
Ramoroka
v Robben Island Museum
(2012) 33 ILJ 500 (CCMA) at para 14 ;
Police
and Prisons Civil Rights Union on behalf of Dumakude v SA Police
Service
(2011) 32 ILJ 519 (BCA) at para 16 ;
SA
Airways (Pty) Ltd v Blackburn and Others
[2010] 3 BLLR 305 (LC).
[13]
(2004) 25 ILJ 248 (LAC) at para 73
[14]
(1998) 19 ILJ 1481 (LC); See also
Meyer
v Commission for Conciliation, Mediation and Arbitration and Others
(2002) 23 ILJ 154 (LC) at para 5.
[15]
Ibid
at para 16.
[16]
(2000) 21 ILJ 2497 (LC).
[17]
Ibidd
at para 11.
[18]
Ibid
at para 13.
[19]
[2002] 9 BLLR 900
(LC) at para 7.
[20]
(2013) 34 ILJ 1120 (LAC) at para 51.
[21]
(2002) 23 ILJ 761 (LC) at paras 29 – 30.
[22]
Department
of Justice
(
supra
)
footnote 13.
[23]
Ibid
at para 71.
[24]
Ibid
at para 89.
[25]
The
first grievance was raised only in August 2010.
[26]
Ibid
at para 92.
[27]
(2007) 28 ILJ 428 (LC).
[28]
Id
at para 34.
[29]
See also
Regional
Commissioner Correctional Services, Free State and Northern Cape v
Wolfaardt and Others
[2013] 7 BLLR 717
(LC) where the Court dealt with a similar policy
framework, and said at para 60: ‘
Thus
had the arbitrator applied his mind to the issue of
the
employment equity,
he
ought to have found that the applicant, in not promoting Mr
Wolfaardt, had interpreted and applied to the provisions of
resolution
7 correctly. The approach adopted by the applicant was in
line, more particularly, with the provisions of clause 7.2 of the
resolution’.
[30]
(2011)
32 ILJ 2493 (LC) at para 28.
[31]
(2006)
27
ILJ
2324 (LC) at paras 47 – 48.