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[2015] ZALCJHB 301
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Hassim v Chamber of Mines (JS280/13) [2015] ZALCJHB 301 (4 September 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 280/13
In the matter
between:
RAZIA
HASSIM
APPLICANT
and
CHAMBER
OF
MINES
RESPONDENT
Heard
:
30 August 2015
Heads of argument filed: 2 September 2015
Delivered
:
4 September 2015
JUDGMENT
VAN
NIEKERK J
[1]
Ms Hassim, the applicant, was employed by the Chamber of Mines, the
respondent, from 1 June 2010 until her retrenchment on 31
October
2012. The applicant worked in the Mines Professional Association
Secretariat, an entity that provided secretarial and administrative
services, through the Chamber, to nine professional associations in
the mining industry. In 2012, the associations decided to appoint
an
alternative service provider. It is not disputed that as a
consequence, the applicant’s position became redundant. Until
then, the applicant had been employed as a Senior Bookkeeper, in the
Paterson C3 band. Her primary responsibilities were to process
all
financial transactions and reports and to prepare financial
statements for each of the professional associations to which
services were provided by the secretariat.
[2]
The applicant disputed the fairness of her retrenchment, and after a
failed conciliation under the auspices of the CCMA she
referred a
dispute to this court. Although the terms of the referral are broad,
by the time the matter reached trial, the only
issue that the court
was required to decide was whether the Chamber had acted unfairly by
failing to appoint the applicant to the
alternative position of
Junior Accountant, a position that had fallen vacant after the
consultation process had been initiated
but before the date on which
the applicant’s employment was terminated.
[3]
It is common cause that the advertised position was described as that
of a Senior Bookkeeper/Junior Accountant. The job description
that
was prepared in anticipation of an appointment required certain
minimum qualifications and levels of experience. These included
possession of a bookkeeping diploma, progress toward a B Com
(accounting) Degree at a recognised institution with a minimum of
credit for the first year of study, a minimum of five years’
experience in financial accounting in a medium-sized company,
ACCPAC
experience, and accounting skills up to the point of annual financial
statements, with experience at a retirement fund being
an advantage.
[4]
It is also common cause that the applicant chanced on the
advertisement on 6 August 2012 before she was informed of it by the
Chamber and that she applied for the position. The applicant attended
two interviews and was informed ultimately by way of a letter
dated 1
October 2012 that her application had been unsuccessful because her
levels of experience and qualifications did not meet
the advertised
minimum requirements.
[5]
In essence, the issue to be decided is whether applicant’s
retrenchment could have been avoided by her appointment to
the post
for which she applied. In particular, the applicant contends that she
met the minimum requirements for the post in that
she possessed the
required qualifications and experience and that with minimal
training, she would have been able to perform the
job satisfactorily
within a reasonable period. Put another way, the court must decide
whether, having regard to the Chamber’s
statutory obligations
to avoid retrenchments and to consider alternatives to dismissal, the
applicant’s retrenchment was
unfair because the Chamber failed
or refused to appoint the applicant to the vacant post. The evidence
led at the trial was limited
to that issue.
[6]
Mr. Harry Groenewald, the Chamber’s Executive responsible for
finance and administration, was part of the panel that interviewed
candidates for the advertised position of Junior Accountant. It is
not disputed that Groenewald ultimately decided not to appoint
the
applicant. He testified that while the applicant was an experienced
bookkeeper, she was not in possession of a bookkeeping
diploma, she
was not studying toward a B Comm. Degree, nor had she completed the
first year of study toward that degree. In addition,
the applicant
had no experience in financial accounting and the accounting
functions relevant to retirement funds, especially the
preparation of
reports for the Reserve Bank and the funds’ actuaries.
[7]
For all of these reasons, the applicant was not appointed to the
position for which she had applied. The upshot of his evidence
was
that the applicant had an inflated view of the value of her
qualifications and experience and that the demands of the advertised
position were considerably more onerous than those that applied to a
senior bookkeeper administering the accounts of a few professional
associations. Groenewald emphasised the regulatory issues relevant to
the management of retirement funds and the difference between
bookkeeping (the applicant’s function until then) and financial
accounting (a higher level demand in respect of which the
applicant
did not have the required experience). In so far as any training
might address the skills gap, Groenewald testified that
the gap was
too big and that in any event, the Chamber required an applicant who
could immediately assume duties and discharge
the responsibilities
associated with the position.
[8]
In response to questions put by the court, Groenewald testified that
the successful applicant, a Mr. Patrick Mathebula, was
recruited from
an auditing firm. He had extensive experience in dealing with complex
financial statements and also the auditing
of the retirement funds.
He was registered for a B.Comm. Degree and at the time, was in his
second year of study. In Groenewald’s
opinion, Mathebula was a
better candidate for the job than the applicant.
[9]
In her evidence, the applicant conceded that the Chamber had not
acted unfairly by advertising the vacant post on the internet
prior
to informing her of the vacancy. The undisputed evidence was that the
Chamber had intended, through internal channels, to
notify the
applicant of the vacancy and that she was indeed notified a day or so
after the posting of the advertisement on the
Internet. In these
circumstances, the applicant conceded that she had suffered no
prejudice on account of any failure by the Chamber
to notify her of
the vacancy before posting it on the internet.
[10]
In relation to the post itself, the applicant contended that her
qualifications (she has a matric and some credits toward a
CIS
qualification (including credits for financial accounting I and II,
awarded in 1997 and 1998 respectively) was the equivalent
of a first
year B Comm., and that her skills and experience were sufficiently
adequate to meet the demands of the criteria listed
in the job
description, subject to some training. In short, the applicant
contended that her credits in the CIS programme exceeded
the
equivalent of a bookkeeping diploma and ranked her as a second year B
Com student (I should add that these propositions were
not put to
Groenewald during cross-examination), that her experience in the
bookkeeping function relating to the administration
of professional
associations met the criteria for the advertised post and that with a
minimum of training, she could have mastered
the reporting functions
associated with the position.
[11]
It is not necessary for me to make any decision relating to the
status of the applicant’s qualifications or the value
of her
experience. The applicant conceded that after submitting her
application, she had been considered for the post and did not
dispute
the fairness of the interview and selection process. To the extent
that the applicant relied on an undertaking by the Chamber
to
consider her for appointment to any future suitable position prior to
considering the appointment of an individual outside of
the Chamber,
the Chamber was required to do no more than consider the applicant
for any suitable vacancy. This the Chamber did,
and the applicant
conceded as much.
[12]
The applicant also conceded that the Chamber was entitled to and had
appointed the better applicant for the job. Specifically,
she did not
dispute that Mathebula’s qualifications and experience met the
minimum criteria in every respect, and that he
met the recommended
requirement of experience in relation to the management of retirement
funds. In these circumstances,
the applicant was hard-pressed
to articulate the precise nature of her claim, and in particular, why
she thought that she had been
unfairly treated.
[13]
The applicable legal principles are well-established. Retrenchment is
a no-fault dismissal and generally speaking, any alternatives
to
retrenchment (including any possibilities of a transfer within the
organisation) ought to be explored before an employee is
retrenched.
Indeed, one of the primary purposes of the statutory consultation
process is the exploration of alternatives to dismissal.
But fairness
does not exist in a vacuum – what matters is whether the
ultimate decision to retrench was fair. Thus
an employer is not
required to make a job for a redundant employee where none exists,
nor does the employee have an unqualified
right to be appointed to
any vacant positions that might exist.
[14]
In a marginally different context, that of unfair labour practices
concerning promotion, this court has been reluctant to second-guess
the basis on which employers make decisions about appointments. The
court recognises that employers have a discretion in respect
of whom
they choose to promote and provided that the employer does not act in
a way that may lead to an inference of
mala
fides
,
the court does not interfere. What is paramount is that employers do
not act unfairly towards candidates. In a similar vein, in
the
present instance, and to the extent that the applicant's case is that
the Chamber somehow acted unfairly by failing to appoint
the
applicant to the job for which she had applied, it is clear from the
evidence that the Chamber made the decision to appoint
Mathebula in
good faith, and that there was nothing arbitrary or unfair about that
appointment or conversely, about the decision
to refuse to appoint
the applicant.
[15]
I did raise with Ms. Khota, the Chamber’s Human Resources
Manager, why the applicant was invited to an interview (indeed,
to a
second interview) in circumstances where from the outset it was the
Chamber’s case that she did not possess the minimum
requirements in respect of qualifications and experience that had
been stipulated. I did not receive an entirely satisfactory answer
to
this enquiry but, as I have indicated, the evidence as a whole does
not disclose any unfair conduct on the part of the Chamber.
[16]
I had the sense after hearing the applicant testify that she was
aggrieved at her retrenchment in that she thought that the
Chamber
could have done more to accommodate her, especially by placing her in
alternative employment, in the form of the vacant
post for which she
applied. But in the absence of any right to appointment, and given
the absence of any evidence to demonstrate
that the Chamber, in one
way or another, acted unfairly in relation to any available
alternatives to retrenchment, I am not persuaded
that the applicant’s
retrenchment was unfair. The applicant's referral therefore stands to
be dismissed.
[17]
In relation to costs, this court has a broad discretion in terms of s
162 of the LRA to make orders for costs according to
the demands of
the requirements of the law and fairness. This court has been
traditionally reluctant to make orders for costs where
genuinely
aggrieved individuals, misguided as they may be, pursue what they
perceive to be their rights against their employers.
In my view, the
present case falls into that category and for that reason, and given
that the applicant’s representative
is acting
pro bono
,
I do not intend to make any order for costs.
I
make the following order:
1.
The
applicant's referral is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION:
For
the applicant: Mr. N Thanyaane, Thaanyane Attorneys
For
the respondent: Mr. M Khoza, ENS attorneysRetrenchment, being as it
is a no fault dismissal, inevitably generates feelings that
might
range from dissatisfaction to resentment to outright hostility.