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[2014] ZALCPE 30
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Jacobs v General Public Service Sectoral Bargaining Council and Others (P510/10) [2014] ZALCPE 30 (5 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 510/10
In
the matter between:
MONWABISI
AARON
JACOBS
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
(GPSSSBC)
First Respondent
W
F BENTZ AND ASSOCIATES
(ARBITRATOR)
Second Respondent
MEMBER
OF EXECUTIVE
COUNCIL
(MEC): LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS, EASTERN
CAPE
PROVINCE
Third Respondent
Heard:
29 October 2013
Delivered:
5 November 2014
Summary:
An applicant needs to prove more than that he was the most suitable
candidate for the decision not to
appoint him to constitute an unfair
labour practice. In the absence of the proof, the award is not
susceptible to review.
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (‘the arbitrator’)
dismissing
the applicant’s claim that the Department of Local Government
and Traditional Affairs (‘the Department’)
committed an
unfair labour practice relating to promotion by not appointing him to
the position of Manager: Labour Relations. It
is opposed by the third
respondent.
[2]
The applicant joined the Department in 1988 as a Personnel
Practitioner. In July 1999 he set up the Department’s Labour
Relations Unit and became its
de facto
head. In February 2007, the applicant was promoted to the position of
Assistant Director. The applicant submitted that between
1 April 2007
and 30 November 2008 he performed the functions of the Manager:
Labour Relations pursuant to the resignation of the
official who held
the position. In May 2007, the post of Manager: Labour Relations
(‘the impugned post’) was advertised.
The applicant was
not short listed. Ms Mazosiwe was eventually appointed to the
impugned position. Had the applicant been appointed
he would have
been promoted. Aggrieved by the Department’s failure to appoint
him, the applicant referred an unfair labour
practice relating to
promotion to the first respondent where the arbitrator made the
award, the applicant seeks this Court to review
and set aside.
The
award
[3]
The arbitrator accepted the Department’s version that it
appointed Ms Mazosiwe in compliance with its Employment Equity
Plan
(EEP). Even the applicant’s witness conceded that the EEP was
utilized in the recruitment of new incumbents. The arbitrator
rejected the applicant’s claim that he acted in the impugned
position as he could not produce any official documents supporting
his claim and found that he had no reasonable expectation to be
promoted to the position. He concluded that although the applicant
might have met the requirements for the impugned position, he was not
convinced that Mazosiwe’s appointment was made without
due
regard to the EEP and its targets that were in place at the time.
Grounds
for review
[4]
The applicant sought to rely on a number of grounds. He submitted
that the explanation the third respondent gave him for overlooking
him for promotion was that it had to appoint a female senior manager
in terms of it EEP. The explanation was, according to the
applicant,
false and the arbitrator should therefore have rejected it and
accepted his version that the third respondent’s
failure to
appoint him was based on gender and racial discrimination. The
arbitrator further prevented him from raising the inconsistent
application of the EEP by the Department. The applicant averred that
the arbitrator’s failure to deal with the critical issue
of
inconsistency in his award proved that he did not consider the issue
thus committing conduct which rendered his award reviewable.
[5]
A further attack on the award is based on the manner in which the
arbitrator dealt with the issue of legitimate expectation.
Contrary
to the applicant’s evidence that his expectation was based on
the Department’s Recruitment Policy, in that
he was the most
suitable candidate and had the relevant experience on both occasions
the position was advertised, the arbitrator
incorrectly rejected the
applicant’s argument on legitimate expectation on the basis
that he had acted in the position. Had
the arbitrator applied his
mind properly he would have concluded that the third respondent had
committed an unfair labour practice
by disregarding its own
recruitment policy. The applicant submitted that the arbitration
award is susceptible to review on the
grounds that his analysis of
the evidence before him is misleading. He failed to give proper
weight to evidence in his favour including
the testimony that the
equity targets were no longer relevant between April and December
2008.
[6]
On 25 January 2012, the applicant filed an amended notice of motion
which he withdrew in his replying affidavit filed on 11
March 2013.
[7]
The test for review is expressed as follows in
Sidumo
and Another v Rustenburg Platinum Mines and others
[1]
:
‘…
The
better approach is that section 145 is now suffused by the
constitutional standard of reasonable. That standard is the one
explained in Bato Star: Is the decision reached by the commissioner
one that a reasonable decision-maker could not reach? Applying
it
will give effect not only to the constitutional right to fair labour
practices, but also to the right to administrative action
which is
lawful, reasonable and procedurally fair.’
[8]
The third respondent argued, correctly so, that a substantial part of
the applicant’s argument was dedicated to the fairness
of the
arbitration award rather than to its reasonableness. Contrary to the
third respondent’s argument that the applicant
contended that
the arbitrator did not take into account his submissions but failed
to identify them, the applicant in fact identified
the arbitrator’s
failure to deal with the issue of inconsistency as one of the
submissions.
[9]
Commissioner’s failure to deal with specific issues was dealt
with as follows in
Fidelity
Cash Management Services v CCMA and Others
[2]
‘
There
is no reason why an arbitration award that, viewed objectively, is
reasonable should be held to be unreasonable and set aside
simply
because the commissioner failed to identify good reasons that existed
that could demonstrate the reasonableness of the award.
In addition
in
Gold
Fields Mining SA (Pty) Ltd v CCMA
[3]
the Court dealt with the criticism based on arbitrators’
failure to deal with some issues thus:
‘
In
a review conducted under section 145 (2) (c)(ii) of the LRA, the
reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with each
of these factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to
process-related irregularity sufficient to set aside the award.
This
piece meal approach of dealing with the arbitrator’s award is
improper as the review court must necessarily consider
the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that a reasonable decision-maker
could make’.
[10]
In
SAPS
v Safety & Security Sectoral Bargaining Council
[4]
,
a
dispute about the employer’s unfair failure to promote an
applicant
,
it
was held that an applicant needs to show more than that he or she
deserved to be promoted.
[11]
The totality of the evidence before the arbitrator proves that the
applicant’s claim that the third respondent committed
an unfair
labour practice by not promoting him is based on his averment that he
was the most suitable candidate, with relevant
qualifications and
experience. For the third respondent’s conduct to have
constituted an unfair labour practice the applicant
was required to
prove more than being the most suitable candidate. He had to
prove that but for the unfair conduct of the
third respondent he
would have been appointed. He did not succeed in doing so because
even his witness conceded that the third
respondent applied its EEP
when making appointments. Even if his averment that he was the most
suitable candidate could be accepted
if a female had to be appointed
in terms of the EEP, failure to appoint him could not constitute an
unfair labour practice.
[12]
Other grounds the applicant sought to rely on are based on the errors
the arbitrator made and the weight he attached to evidence.
In
Herholdt
v Nedbank Ltd
[5]
the court dealt with mistakes of commissioners thus:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145 (2) (a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145 (2) (a) (ii),the
arbitrator must have misconceived the nature of
the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance
to be attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.
[13]
In
Gold Fields (supra
), the Court confirmed that
commissioners’ gross irregularities will not automatically lead
to the setting aside of an award.
Notwithstanding the irregularity an
award will not be set aside if such irregularity falls in the band of
decisions which a reasonable
decision-maker could come to on the
material presented at the arbitration. The applicant has not shown
how the errors the arbitrator
made rendered his award unreasonable.
In the circumstances his application cannot succeed.
[14]
The applicant did not act unreasonably in bringing this application,
a costs order will, in the circumstances not be appropriate.
[15]
In the premises the following order is made:
15.1
The application for review is dismissed.
__________________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCE
For
the Applicant:
Advocate
Naran
Instructed
by:
Maci Incorporated
For
the Third Respondent: Advocate Gqamana
Instructed
by:
State Attorney
[1]
[2007] 12 BLLR 1097
(CC) at para 110.
[2]
[2008] 3 BLLR 197 (LAC)
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 18.
[4]
[2010] 8 BLLR 892 (LC)
[5]
[2013] 11 BLLR 1074
(SCA) at para 25.