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[2015] ZALCJHB 191
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Kearns v Phatshoane NO and Others (JR2569/07) [2015] ZALCJHB 191 (30 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Case
No: JR 2569/07
DATE:
30 JUNE 2015
Not
Reportable
In
the matter between:
John
KEARNS
...........................................................................................................................
Applicant
And
V
Phatshoane
N.O
.........................................................................................................
First
Respondent
Phwsbc
Second Respondent
Department
of Social Services And Population Development
(Northern
Cape)
..........................................................................................................
Third
Respondent
Johan
Van Den
Berg
.................................................................................................
Fourth
Respondent
Heard:
3 June 2015
Delivered:
30 June 2015
Summary:
Review – unfair labour practice – failure to promote.
Judgment
STEENKAMP
J
Introduction
[1]
The applicant, Mr John Kearns, works for
the third respondent, the Department of Social Services and
Population Development of the
Northern Cape. He applied for a
promotional post. He was unsuccessful. He referred an unfair labour
practice dispute to the second
respondent, the Public Health and
Welfare Sectoral Bargaining Council. Conciliation was unsuccessful.
The first respondent, Ms
V Phatshoane, sat as arbitrator. She found
that the Department had not committed an unfair labour practice.
Kearns applies to have
that award reviewed and set aside.
Background
facts
[2]
The
applicant is a Deputy Director: Labour Relations and Legal Services.
The Department advertised a post as Director: Labour Relations
and
Legal Services. The applicant applied. The requirements for the post
stipulated in the advertisement included the following:
[1]
“
Applicants
must be in possession of a relevant Bachelor’s Degree or
equivalent tertiary qualification and at least 8 years’
extensive management experience in Legal Services or Labour
Relations. Extensive knowledge on [
sic
]
legislation pertaining to Legislative Compliance is a prerequisite. A
valid driver’s license is essential. Knowledge of
legislation
governing the Public Service is an added advantage”.
[3]
The applicant was shortlisted and
interviewed. At his interview, he was told that the advertised post
would be split into two, viz
Director: Labour Relations and Director:
Legal Services respectively. He was interviewed for both posts. He
was unsuccessful. The
fourth respondent, Mr Johan van den Berg, was
appointed as Director: Labour Relations. The applicant lodged a
grievance. It was
unresolved. He referred an unfair labour practice
dispute relating to promotion to the Bargaining Council. Conciliation
was unsuccessful
and he referred it to arbitration.
[4]
The applicant argued that the failure to
promote him to the position of Director: Labour Relations was an
unfair labour practice
for the following reasons:
4.1
The successful candidate, Van den Berg, did
not have a Bachelor’s degree “or equivalent tertiary
qualification”.
4.2
Van den Berg did not have “at least 8
years’ extensive management experience in labour relations”.
4.3
The Department’s decision to split
the two posts was unfair and in breach of public service regulations.
4.4
The selection panel did not properly apply
its mind to Van den Berg’s appointment.
4.5
Van den Berg had been promised the post
beforehand; and
4.6
Van den Berg had been dismissed by his
previous employer, the trade union HOSPERSA, and had not disclosed
it.
The
award
[5]
The
arbitrator, quite correctly, commenced her analysis by referring to
John Grogan’s
Workplace
Law
[2]
:
“
Employers
are guilty of unfair conduct relating to promotion if they gIve
employees a reasonable expectation that they will be advanced
and
then, without adequate reason, frustrate that expectation. It has
also been held to be unfair for an employer to advertise
a position,
setting a prescribed minimum qualification, and then to appoint a
person who did not possess that qualification…”
[6]
The arbitrator also correctly noted that,
in terms of the advertisement for the post, it was a requirement to
have a Bachelor’s
degree or equivalent tertiary qualification;
and that it was undisputed that Van den Berg had no degree. She
continues:
“
What
then had to be determined on this score was whether the course that
[Van den Berg] attended at the CCMA was an equivalent tertiary
qualification. From the testimony of the applicant NQF5 is a diploma
while NQF6 is a degree. The applicant advanced that
the course
attended by [Van den Berg] had no SAQA value. As proof of this he
relied on the e-mail sent by one Mr Keet around September
2006 to Ms
Yolande van Dyk…”
[7]
The CCMA commissioner training course
referred to is a 27 day course to be trained as a CCMA commissioner.
[8]
The arbitrator found that the email
“clearly does not say that the course had no SAQA value at the
relevant time when [Van
den Berg] applied, this email rather reads
‘note that the coordinator was unable to forward the NQF status
of the course
since they are still awaiting accreditation, however he
did inform me that the course was previously accredited and that it
has
expired… We are currently awaiting renewed recognition”.
[9]
The arbitrator then referred to recognition
of prior learning and formed the view that “the applicant gave
his case away on
the lack of qualifications of [Van den Berg] when he
referred me under cross examination to… a letter dated 13 July
2006
from the Public Service Coordinating Bargaining Council.”
That letter reads:
“
Your
query pertaining to the NQF level for the CCMA training has
reference.
Please
note that Mr Maripe Majokotja of the CCMA training department
confirmed this morning that the CCMA Commissioner Training
Course is
presented on NQF level 5 i.e. equivalent to a diploma.”
[10]
The arbitrator then concluded:
“
On
the strength of the letter from the PSCBC above which was handed in
by the applicant himself I am not persuaded that [Van den
Berg] did
not have the relevant qualification. As a party making an allegation
of lack of qualifications on the part of [Van den
Berg] the applicant
ought to have demonstrated that the qualifications required for the
position were indeed lacking rather than
merely referring me to an
email of Mr Keet referred to above which in my view says nothing
pertaining to the qualification of the
applicant at the time when he
attended interviews and or subsequently.”
[11]
After having had regard to the other
complaints raised by the applicant, the arbitrator found in summary
that she was satisfied
that the Department had regard to the
qualifications and experience attached to the post and applied its
mind to the interview
process. She concluded that the department did
not commit an unfair labour practice against the applicant.
Review
grounds
[12]
The applicant submits that the arbitrator
committed a reviewable irregularity by ignoring the fact that Van den
Berg did not meet
the minimum requirements for the post. Given my
view on that ground of review, I need not consider the others.
Evaluation
/ Analysis
[13]
Before I deal with the merits of the review
application, I need to deal with two applications for condonation.
Condonation:
Founding affidavit
[14]
The review application was seven weeks
late. The applicant was initially not legally represented. He took
advice from his trade
union. The union told him to appoint an
attorney. When he did so, the attorney, Mr Yusuf Nagdee, told him
that he was a panellist
for the PHWSBC (the second respondent) and
therefore had a conflict of interest and could not assist him.
Further delays were occasioned
by the applicant having to find new
attorneys, based in Johannesburg, while the applicant is based in
Kimberley.
[15]
Although the delay is quite lengthy, the
explanation is acceptable. As will become apparent, the applicant’s
prospects of
success are good. And more importantly, there is no
prejudice to the Department, given the much lengthier delay
occasioned by it
and the state attorney in delivering the answering
affidavit, to which I now turn. Condonation is granted for the late
filing of
the review application.
Condonation:
answering affidavit
[16]
The answering affidavit was delivered four
months late. On 9 September 2010 Basson J ordered the Department to
deliver an application
for condonation within 10 days. The Department
and the state attorney failed to do so. They only did so on 4 October
2010, almost
a month later.
[17]
The explanation for lateness is poor. It is
mainly due to the incompetence of the state attorney. The state
attorney in Kimberley
briefed an Adv Memani in Johannesburg to
“prepare an opinion” in this matter as long ago as 11
February 2008. Inexplicably,
a consultation was only held with
advocate Memani almost one and a half years later, on 9 June 2009.
The applicant had filed his
notice in terms of rule 7A(8)(b) on 6
April 2009. It then took Adv Memani more than a month until 15 July
2009 to prepare a draft
answering affidavit. The acting Head of
Department who eventually deposed to the undated answering affidavit
that was only delivered
another month later, on 17 August 2009, Mr
Herman Matlhomola Mooketsi, “was also confronted with an extra
workload which
made it difficult for him to attend not only to his
work but the extra burden placed upon him, including the matter
in
casu
” – being an answering
affidavit comprising 13 pages.
[18]
The delay in filing the answering affidavit
is excessive and the explanation therefor is poor. To make matters
worse, the Department
and the State Attorney did not comply with
Basson J’s order to deliver the application for condonation
within ten days of
10 September 2010. For that non-compliance it
offered no explanation. And as will appear below, the Departments
prospects of success
are not good. The application for condonation
for the late filing of the answering affidavit is dismissed.
The
merits
[19]
The most important bone of contention is
Van den Berg’s not having a Bachelor’s degree. That much
is common cause. The
remaining question is whether the arbitrator’s
finding that “the applicant ought to have demonstrated that the
qualifications
required for the position were indeed lacking”,
was a reasonable one.
[20]
The arbitrator effectively put the onus on
the applicant to show that the 27-day course that Van den Berg had
attended, is somehow
equivalent to a Bachelor’s degree of three
years. [The arbitrator’s reference to the applicant’s
qualifications,
and that the email from Mr Keet is “irrelevant”
to the applicant’s qualifications, is hard to fathom. It is and
was common cause that the applicant did have a B Iuris degree].
[21]
The email from Mr Keet – apparently
an employee of the Northern Cape provincial government – does
nothing more than
stating a hearsay allegation that the CCMA course,
no longer accredited, was previously accredited at NQF level 5. There
is nothing
in the evidence to suggest that that is equivalent to a
Bachelor’s degree. It is indeed highly improbable that a 27-day
course,
not offered by a university, can be equated to a three-year
degree.
[22]
In the documentation that was presented to
the arbitrator, there does appear a computer printout, apparently
from the personnel
administration of the national Department of
Public Works. That printout equates NQF level 5 with a “higher
certificate”
while a Bachelor’s degree is equivalent to
an NQF level 7. However, it does not appear that any definitive
evidence was led
before the arbitrator to explain what the actual
SAQA accreditation of the CCMA course was; or, if it could be equated
to NQF level
5, what that equivalent would be when compared to a
Bachelor’s degree. At the very least, there was no evidence to
suggest
that Van den Berg did possess a tertiary qualification
equivalent to a Bachelor’s degree.
[23]
Faced with this lack of evidence, the
arbitrator’s conclusion that Van den Berg did meet the
qualifications for the job, specifically
a Bachelor’s degree or
the equivalent tertiary qualification, was so unreasonable that no
other arbitrator could have come
to the same conclusion. And that
conclusion led to her further conclusion that the Department did not
commit an unfair labour practice.
[24]
That conclusion must be reviewed and set
aside. Another arbitrator must decide, at the hand of proper
evidence, whether Van den
Berg did or did not have the requisite
qualifications. Given my finding in this regard, it is unnecessary to
consider the remaining
grounds of review.
Conclusion
and Costs
[25]
The dispute turns primarily on the question
whether Van den Berg had a qualification equivalent to a Bachelor’s
degree, which
is a prerequisite for the contested post. No proper
evidence was placed before the arbitrator to answer this question,
neither
did she ask for any such evidence. It was a reviewable
irregularity for her to place the onus on the applicant to prove a
negative,
i.e. that Van den Berg did not have an equivalent
qualification, when it was common cause that he did not have a
Bachelor’s
degree. The only way to correct that irregularity is
to remit the dispute to the Bargaining Council in order for the
relevant evidence
to be placed before another arbitrator in order to
determine whether Van den berg did or did not fulfil the requirements
for the
job, i.e. whether he did or did not have the equivalent of a
Bachelor’s degree.
[26]
The upshot is that the dispute remains
unresolved. In law and fairness, even though the applicant has been
successful to the extent
that the award has been set aside, I do not
consider a costs order in those circumstances to be appropriate,
especially since the
applicant is still employed by the Department.
However, the Department should pay the costs occasioned by its late
filing of the
answering affidavit and its non-adherence to the Basson
J’s order.
Order
[27]
I therefore make the following order:
27.1
The arbitration award under case number
PSHS 487-06/07 is reviewed and set aside.
27.2
The dispute is remitted to the second
respondent (the Bargaining Council) for a fresh arbitration before an
arbitrator other than
the first respondent.
27.3
The third respondent (the Department of
Social Services and Population Development, Northern Cape) is ordered
to pay the costs for
the condonation application occasioned by the
late filing of its answering affidavit and concomitant application
for condonation.
Steenkamp J
APPEARANCES
APPLICANT: T
Mapheto (attorney).
THIRD
RESPONDENT: T Mkhwanazi
Instructed by
the State Attorney, Kimberley.
[1]
Unnecessary capitalization as in original.
[2]
2007 at 263.