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[2015] ZALCJHB 327
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Adams v Safety and Security Sectoral Bargaining Council and Others (JR831/11) [2015] ZALCJHB 327 (22 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR832/11
In the matter between:
SUPT. MM ADAMS
Applicant
and
THE SAFETY AND
SECURITY SECTORAL BARGAINING COUNCIL
First Respondent
JOYCE TOHLANG
Second Respondent
MINISTER OF SAFETY
AND SECURITY
Third Respondent
SOUTH AFRICAN
POLICE SERVICE; COMMISSIONER OF POLICE
Fourth Respondent
Delivered:
25 September 2015
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1]
The
Applicant, a Superintendent in SAPS sought promotion to the rank of
Director (previously Brigadier). When his application was
unsuccessful, he lodged an alleged unfair labour practice dispute at
the First Respondent (the SSSBC). The dispute was arbitrated
by the
Second Respondent (the Arbitrator), who issued an award on 3 March
2011 under case number PSSS567-05/06, in which she dismissed
the
claim. With this opposed application, the Applicant seeks an order
reviewing and setting aside and/or correcting that arbitration
award.
Background:
[2]
The
facts of this case are fairly common cause. The Applicant sought
promotion to the rank of Director, Detective Services, Commercial
Branch, which position was advertised in 2005. A panel consisting of
four individuals did not shortlist the Applicant on account
of his
limited management experience in respect of the position applied for.
Aggrieved at the decision, the Applicant lodged an
internal grievance
on 28 October 2005 which could not be resolved. He had then referred
an unfair labour practice dispute to the
SSSBC on 3 November 2005. It
was further common cause that the Applicant resigned from SAPS prior
to the award being issued.
The arbitration
proceedings:
[3]
The
matter came before the Arbitrator for a hearing on 27 August 2010.
This was after it had been postponed several times before
by the
parties due to a number of reasons including that documents that had
been requested by the Applicant had not been provided.
On the date
that the dispute was heard, the parties agreed not to lead oral
evidence but to have the dispute determined on the
basis of documents
and written heads of argument to be submitted at an agreed date.
Nevertheless the Arbitrator had to wait for
these documents as none
of the parties had complied with the time frames agreed upon.
[4]
The
Secretariat of the SSSBC had to be called upon to intervene by the
Arbitrator and only thereafter did the Applicant submit his
documents
on or about 3 November 2010, some two months after the hearing date.
The SAPS failed to submit any documentation or written
heads of
argument, and the Arbitrator decided to dispense of the matter based
solely on those documents submitted by the Applicant
and his written
heads of argument.
[5]
The
issue for determination before the Commissioner was whether the
failure to promote the Applicant by the SAPS constituted an
unfair
labour practice as contemplated in section 186 (2) of the Labour
Relations Act
[1]
(the LRA).
The award:
[6]
In
her award, the Arbitrator considered the Applicant’s
submissions to the effect that another candidate, a white male, was
appointed to the position that he had applied for. His argument was
nevertheless that the SAPS as a designated employer was obliged
to
comply with the Employment Equity Act
[2]
(the EEA), and its own Employment Equity Plan in eliminating
discrimination.
[7]
The
applicant’s further contention was that the promotion panel
failed to apply its mind to considerations of equity, and
that the
reason for not shortlisting him was not in accordance with the
provisions of section 5 of the EEA. As the Commander of
the Detective
Services, Commercial Branch, the Applicant considered himself to
possess the necessary experience for the post. His
further contention
was that he had various qualifications including BA in Police
Science, LLB and LLM, and that at most, the SAPS
should have sent him
for a managerial course.
[8]
In
her analysis, the Arbitrator had regard to the meaning of an unfair
labour practice as defined in section 186 of the LRA and
pointed out
that no oral evidence was presented before her to show that the
Applicant indeed had the necessary experience and to
show that the
panel’s decision not to shortlist him was unfair. The
Arbitrator further took into account the Applicant’s
own
version that he indeed had limited experience and concluded that
there was no evidence to suggest that the SAPS had acted in
an
inconsistent, arbitrary or capricious manner against the Applicant.
[9]
The
Arbitrator further took into account that the Applicant’s claim
appeared to be based on an alleged discrimination as he
had contended
that the post advertised was a designated post. The Arbitrator found
no evidence of this contention, and concluded
that the Applicant had
been on a fishing expedition to find some irregularities from
documentation he sought from SAPS. The Arbitrator
further concluded
that there was no evidence to suggest that the Applicant was superior
to any candidate, and the mere fact that
he was unhappy with not
being appointed did not imply that SAPS had committed an unfair
labour practice
Grounds of review:
[10]
The
award was attacked on the basis that it was not justifiable in
relation to the reasons given for it having regard to the evidence
presented to the Arbitrator, or alternatively, that there was no
rational connection between the material placed before the Arbitrator
and the conclusions reached. It was submitted that the Arbitrator
failed to apply her mind to the evidence and facts presented
to her;
that she committed a gross irregularity by failing to apply her mind
to the evidence, misunderstood the evidence and attributed
motives to
the Applicant which could not reasonably be drawn from the evidence.
Evaluation:
[11]
The
test on review is fairly well established. The reviewing court in
accordance with the
Sidumo
[3]
test, asks the question whether the decision reached by the
Arbitrator is one that a reasonable decision-maker could not reach
on
the material placed before her
[4]
.
It has
also been held that an award would be susceptible for a review where
it is established that the decision of the Arbitrator
was “entirely
disconnected with the evidence” or is “unsupported by any
evidence” and “involved speculation
by the
Commissioner”
[5]
.
[12]
The
dispute before the Arbitrator was whether the SAPS had committed an
unfair labour practice by not promoting the Applicant. It
was common
cause that no oral evidence was presented to the Arbitrator, and
further that she had determined the matter solely on
the
documentation presented by the Applicant including his written heads
of argument. To the extent that this was what the Arbitrator
was
confronted with, it was submitted on behalf of the Applicant that
there was nothing to rebut his version and therefore the
Arbitrator
should have found in his favour.
[13]
When
it is alleged that an arbitrator failed to apply her mind to the
evidence and facts presented to her, or failed to apply her
mind to
the evidence, or misunderstood the evidence, the assumption is that
there was indeed evidence presented to the arbitrator.
Concerns have
always been raised over the tendency by parties at bargaining
councils to simply burden arbitrators with documents
and written
heads of argument with an expectation of a favourable outcome. In
such circumstances, parties do not even bother to
hold a proper
pre-arbitration hearing and submit comprehensive minutes in that
regard. No effort is made by the parties to agree
on a stated case
capturing the salient issues that are common cause or those that are
in dispute. In circumstances such as in this
case where there are
material disputes of fact, the parties’ approach in this regard
can only at best be described as lackadaisical.
[14]
It
is accepted that despite the parties’ agreement to adopt this
clearly untenable approach in circumstances where there are
material
disputes of fact, the arbitrator ordinarily has a say in the matter
in that he or she can call for oral evidence. This
is premised on the
principle that parties must be afforded an opportunity to have their
say in respect of the dispute
[6]
.
In the same token, it is also accepted that parties are entitled to
restrict the ambit or scope of arbitration and statutory
proceedings
[7]
. Where however
the parties adopt a short-circuited approach as in this case, and
parties did not comply with their undertakings
to file documents and
written heads of argument as agreed and on time, the arbitrator in my
view was entitled to dispose of the
matter in a manner she deemed fit
as contemplated in section 138 (1) of the LRA. This was even more
appropriate in circumstances
such as in this case, where the hearing
of the dispute had previously been postponed on several occasions.
[15]
Furthermore,
where the parties had not presented oral evidence to support their
respective cases in circumstances where there are
material disputes
of fact, it cannot be said that the arbitrator failed to consider
‘evidence’, or misunderstood ‘evidence’
in
that strictly speaking, there can be no evidence before the
arbitrator where no oral evidence to substantiate documents is
submitted. It is trite that documents on their own do not constitute
evidence, and written heads of argument can never be considered
as
evidence.
[16]
As
a result of the SAPS not filing its documents as promised, the
Arbitrator had essentially treated the matter as unopposed. This
however did not necessarily imply that it should have been plain
sailing for the Applicant, in that the Arbitrator still had to
be
satisfied that a proper case of unfair labour practice had been made
out.
[17]
Central
to the dispute was whether the Applicant had the necessary managerial
experience to be appointed to the post. This required
of the
Applicant to place evidence before the Arbitrator that he indeed
possessed the necessary managerial skills, and to show
that he should
at the most have been short listed. It is trite the onus was on the
Applicant to establish the existence of an unfair
labour practice
[8]
.
In this case however, starting with the pre-arbitration minutes
concluded by the parties, nothing of substance in regards to the
factual issues was addressed by the parties.
[18]
In
the written heads of argument, the Applicant had essentially blamed
the SAPS for not being able to present or prove his case
in that he
was not furnished with the documents he had requested. On this
contention alone, his claim should have been dismissed.
Furthermore,
the Applicant had made reference to the EEA and the SAPS’
Employment Equity Plan and it is not known in what
context this
submission was made as it was completely irrelevant to the issue at
hand. To the extent that the Applicant claimed
that he was
discriminated against in not being shortlisted in that a white male
was appointed to the post, the Arbitrator correctly
pointed out that
she had no jurisdiction over the matter, and again, his claim should
have been dismissed on that basis. The written
heads of argument
filed for the purposes of these review proceedings do not take the
Applicant’s case any further in that
the same submissions as
those before the Arbitrator were made.
[19]
In
the light of the above, there is no basis upon which it can be said
that the Arbitrator’s conclusions in the light of what
was
placed before her did not fall within a range of reasonableness.
There was nothing placed before her to indicate in what material
respects the Applicant possessed the necessary experience for the
post in question. The Arbitrator dealt with each contention raised
in
the Applicant’s written heads of argument, and I fail to
appreciate how it can be said that she had failed to apply her
mind
to the issues before her. The Applicant hopelessly failed to
discharge the onus placed on him to prove that the failure to
either
shortlist or appoint him constituted an unfair labour practice, and
based on his own version that he was unable to prove
his case, or
that his claim was based on an alleged discrimination, the
Arbitrator’s decision cannot be faulted.
[20]
It
is not sufficient for an employee to merely allege that an unfair
labour practice had been perpetrated where it is not shown
in what
respects the employer’s conduct was capricious or motivated by
irrelevant considerations. It is trite that an employee
has no right
to a promotion except in terms of statutory/contractual right to
promotion. The employee is only entitled to a fair
opportunity to
compete for a position and a fair consideration of his or her
application and nothing more. To this end, there is
no basis to
interfere with the Arbitrator’s award.
[21]
In
regards to the issue of costs, it is taken into account that the
Respondents did not comply with their undertakings before the
Arbitrator and did not file their documents or written heads of
argument when requested to do so by the Arbitrator and the SSSBC.
In
my view, it was extremely opportunistic on the part of the
Respondents to seek to oppose this application at this late stage.
Furthermore, it was common cause that the Applicant resigned before
the arbitration proceedings or the award could be issued. In
his
referral form, the outcome he sought from the arbitrator was to be
promoted to the rank of Director. In the light of his resignation
and
the outcome he sought, it is apparent that the application before the
court is superfluous. To this end, considerations of
law and fairness
dictate that a cost order should not be made.
Order:
a)
The
application to review and set aside the arbitration award dated 3
March 2011 issued under case number PSSS567-05/06 by the Second
Respondent is dismissed.
b)
There
is no order as to costs.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicant:
Mr JM Gouws of Johan Gouws Attorneys
On behalf of the First
Respondent: Adv. S Tilly
Instructed
by:
State Attorney
[1]
Act 66 of 1995 as
amended
[2]
Act 55 of 1998
[3]
Sidumo v
Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC), held that [at par 110]:
[4]
See also
Herholdt
v Nedbank Ltd
(2013) 34 ILJ 2779 (SCA) at para [12] where the SCA held that the
test
“…
involves the
reviewing court examining the merits of the case ‘in the
round’ by determining whether, in the light
of the issues
raised by the dispute under arbitration, the outcome reached by the
Commissioner was not one that could reasonably
be reached on the
evidence and other material properly before the Commissioner. ...
The reasons are still considered in order
to see how the
Commissioner reached the result. That assists the court to determine
whether that result can reasonably be reached
by that route. If not,
however, the court must still consider whether apart from those
reasons, the result is one that a reasonable
decision- maker could
reach in the light of the issues and the evidence.”
[5]
Herholdt
at par [13]
[6]
Gold Field
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration & others
(2014) 35 ILJ 943 (LAC)
[7]
See Shoredits
Construction (Pty) Ltd v Pienaar NO and Others
1995
(16) ILJ 390 (LAC) at 393
[8]
See
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
Others
(2013) 34 ILJ 1156 (LC) at para 19. See also
Department
of Justice v Commission for Conciliation, Mediation and Arbitration
and Others
(2004) 25 ILJ 248 (LAC) at para 73
Where the Court held that :
“…
.
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.”