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[2015] ZALCJHB 369
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City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR1513/11) [2015] ZALCJHB 369 (27 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR1513/11
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Applicant
and
THE
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
First Respondent
COMMISSIONER
QUEENDY GUNGUBELE N.O.
Second Respondent
SAMWU
OBO IM PALARE AND 3
OTHERS
Third Respondent
Heard:
6 MARCH 2015
Delivered
:
27 October 2015
Summary:
The arbitration award reviewed – arbitrator granting protective
promotion – such relief incompetent,
no evidence led with
regard to the losses suffered by employee, further the employee does
not have a right to be shortlisted and
as such on the evidence before
the commissioner the finding cannot be said to be reasonable within
the contemplation of the authorities.
JUDGMENT
AH
SHENE, AJ
Introduction
[1]
This applicant in this review
is the City of Tshwane Metropolitan Municipality. The third
respondent represents an employee, Ingrid
Palare, who sought redress
in the South African Local Government Bargaining Council (“SALGBC”)
alleging that she had
been a victim of an unfair labour practice.
[2]
The third respondent was
successful in the arbitration, and accordingly awarded protective
promotion.
[3]
The review was launched 1 day
out of time and, accordingly, Mr Naidoo, who appeared for the third
respondent, indicated that he
was not opposing the late filing of the
review.
Grounds
for review
[4]
The applicant sought to rely on
a number of grounds of review, in that the second respondent
committed a gross irregularity in conducting
the proceedings;namely,
that she made findings that were not justified on the evidence,
alternatively, that she gravely misunderstood
the evidence before
her; further thereto that the second respondent in handing down her
arbitration award, she cited and considered
the evidence led by the
applicant at the arbitration on a very limited and selective basis.
[5]
A further attack on the award
was the manner in which the second respondent evaluated the evidence
which was before her, in that
she failed to apply her mind to the
facts before her.
[6]
The test for review is
expressed as follows in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
:
[1]
‘…
the
better approach is that section 145 is now suffused by the
constitutional standard of reasonableness. That standard is 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.’
[7]
Other grounds that the
applicant sought to rely on are based on errors the arbitrator made
and the weight he attached to the evidence.
[8]
In
Herholdt
v Nedbank
,
[2]
the Court dealt with the mistakes of commissioners:
‘
In
summary, the position regarding the review of the CCMA awards is
this: A review of a CCMA award is permissible if the defect
in
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 enquiry 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 themselves sufficient for an award to be set aside, but
are only of consequence
if their effect is to render the outcome
unreasonable.’
[9]
In
Gold
Fields
Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and Others
,
[3]
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 within the band of decisions which
a
reasonable decision maker could come to on the material presented at
the arbitration.
[10]
Mr Bekker who appeared on
behalf of the applicant raised the argument that the award stood to
be set aside,
inter alia,
on the grounds that the commissioner committed a gross irregularity
in conducting the proceedings, i.e in that she made a finding
which
cannot be justified on the evidence, alternatively, that she gravely
misunderstood the evidence as presented by the parties.
The
commissioner considered the evidence led by the applicant on a
limited basis and failed to consider the following:
(a)
that the applicant failed to
meet the minimum requirement of the position;
(b)
the reasons advanced for the
required qualification;
(c)
that there was no documentation
presented that the applicant met the minimum job requirements;
[11]
It was argued that the
commissioner incorrectly came to the conclusion that it was common
cause that the “applicant, Ms Ingrid
Palare, the strategic
Executive Director, Ms Mmutle and her Director, Mrs Aline Birkenstock
believed that she met the requirements
of the advertised post on
Management Support Officer.” On the facts before the
commissioner, she could not have awarded the
applicant protective
promotion based on the evidence led at the arbitration. The evidence
of the applicant’s own witness,
Ms Birkenstock, who compiled
the advertisement and shortlist, requested a waiver of a number of
requirements pertaining to the
applicant. Ms Birkenstock attempted to
reason away the fact that the minimum requirements were a three year
qualification and experience,
that it was a mistake and should have
read “and/or”. The applicant simply did not meet the
requirements as set out
by the employer.
[12]
Mr Naidoo, who appeared on
behalf of the third respondent, argued in support of the allegation
that an unfair labour practice had
been perpetrated against the third
respondent and relied on a collective agreement between the
municipality and the unions on staffing
policy, which expressly
provided that:
12.1 principles of
fairness must guide the recruitment process;
12.2 a person
specification should only contain the requirements essential for
success in a position;
12.3 the object is
to invite applications from suitable candidates;
12.4 all prospective
candidates are allowed fair opportunity to apply and progress through
selection process;
12.5 an inherent
requirement of a position is defined and must be both essential to
the position, and objectively
justifiable;
12.6 selection
criteria must be based on key performance areas and inherent
requirements of the position and must
be applied consistently;
12.7 a candidate is
considered suitably qualified for appointment based on one or a
combination of: formal qualifications,
recognition of prior learning,
relevant experience, ability to do the job, the capacity to acquire
relevant skills and applicable
legislation;
12.8 all relevant
criteria must be taken into account;
12.9 person
selection criteria must have direct relevance to positions for which
candidates are being evaluated.
12.10 the appointment process
must be fair.
[13]
It was further argued that it
was the evidence of Birkenstock that the applicant had the necessary
skills and experience to perform
the job and had in effect been
acting in the position for many years. It was also the practice of
the municipality to waive qualification
requirements and Birkenstock
had made application to that effect. As a result of the
aforementioned, Mr Naidoo argued that the
award was reasonable as the
commissioner took into account all the evidence and all relevant
circumstances. He further contended
that it was important to
establish the nature of the irregularity that is complained of by the
applicant in review proceedings.
The review grounds seem to focus on
alleged errors that the arbitrator committed, namely, material errors
of law and fact when
weighing up the evidence and thus the facts
pleaded do not give rise to valid reviewable irregularities.
Analysis
[14]
Having heard the submissions
from both representatives, it is evident even on the applicant’s
own version that she did not
have the requisite qualifications to
occupy the post, hence the application for waiver. The applicant, in
its heads of argument,
further made this concession.
[15]
Even though this was apparent
from the evidence before the commissioner, she attached minimal
weight to the evidence and came to
the conclusion that a number of
provisions in the collective agreement previously alluded to above
had been breached. As a result
thereof, the commissioner concluded
that the employer committed an unfair labour practice and,
accordingly, awarded protective
promotion.
[16]
The applicant contended that
the relief granted by the commissioner exceeded her powers. There
have been a number of cases in which
the appropriate relief in a
dispute over promotion have been considered.
[17]
Protective promotion is a
concept originating in the Public Service Code, which has been
repealed. In
Dunn v the
Minister of Defence
,
[4]
the court
a quo
was seized with an administrative review of a decision not to promote
an officer to a newly created post. The court declined to
set aside
the appointment of the other candidate but found that the applicant’s
legitimate expectation to an interview had
been thwarted.
[5]
It awarded the respondent damages in terms of section (1)(c)(ii)(bb)
of the
Promotion of Administrative Justice Act 3 of 2000
based on the
salary that he would have been paid had he been appointed to the
position. On appeal, the SCA reversed the decision
of the court
a
quo
, finding,
inter
alia
, that the applicant
had suffered no prejudice on account of the way the appointment
process had been handled, as court
a
quo
itself held that the
risk of non-appointment had been handled, that the risk of
non-appointment was inherent in the process and,
therefore, no
prejudice to the applicant could be attributed to the outcome of the
process. The SCA found also that:
‘
Even
if there were exceptional circumstances, it is impermissible for a
court to substitute its own decision – in this case
to give
Dunn an effective promotion in the Defence Force – for that of
a minister. It is the minister, in terms of the Defence
Act, who has
the power to make appointments and promotions.’
[6]
[18]
The applicant, also referred to
the
Kwadukuza
Municipality v SALGBC and
Others
,
[7]
wherein, Pillemer, AJ held that
‘
I
am satisfied that it is wholly inappropriate and unreasonable to as a
remedy or as a measure of compensation for reasons advanced
by Mrs
Nel. In fact the arbitrator properly applied her mind to the question
of compensation, she would have found that there was
insufficient
material before her to enable her to hold that actual damages had
been suffered. She had to determine the amount of
compensation, if
any that would be appropriately compensate the third respondent for
unfairness in denying to him the opportunity
to compete for a post
for which he seems to have the requisite qualification and in which
he may have succeeded had he competed
and been considered.’
[19]
The above case is
distinguishable in that the applicant in
Kwadukuza
had the requisite qualifications, in the application before me, the
applicant does not have the qualifications as conceded by the
applicant’s own witness, Birkenstock and contained in the
applicant’s heads of argument.
[8]
In any event, there was no evidence of damages suffered or that the
applicant would have been the best suited candidate for the
position
and, therefore, awarding protective promotion in the circumstances
cannot be said to be reasonable given all the evidence
and material
before the commissioner.
[20]
I am satisfied that the
irregularities set out as grounds of review are not self-standing but
when viewed as a whole and having
applied the standard as set out in
Sidumo
,
the award cannot be said to be reasonable and as a result the award
stands to be reviewed and set aside.
[21]
It follows from my decision
that the review succeeds that the prospects on review are such that
condonation should be granted.
Costs
[22]
In considering the issue of
costs, I have to consider both law and fairness in accordance with
section 162 of the Act. Given the
circumstances and the fact that the
applicant was of the view that she had been treated unfairly, it
cannot be said that the applicant
acted frivolously and, therefore,
she should not be liable for the applicant’s costs.
Order
13.
In
the premises, I make the following order:
13.1.
Condonation
for the late filing of the review is granted.
13.2.
The
application for review is dismissed.
13.3.
In
the interest of law and fairness, I make no order as to costs
_______________________
AH Shene, AJ
Acting Judge of the Labour Court of
South Africa
Appearances:
For
the Applicants:
Advocate Bekker
Instructed
by:
Gildenhuys Malatji Inc
For
the respondents:
Mr Naidoo of Cheadle Thompson &Haysom
[1]
[2]
(2013) 34
ILJ
2795 (SCA) at para 25.
[3]
(2014) 35
ILJ
943 (LAC) at para 14.
[4]
2007 (6) SA 52 (SCA).
[5]
Ibid
at para 28.
[6]
Ibid
at para 39.
[7]
Kwadukuza
(2009)
30
ILJ
356 (LC) at 11.
[8]
Applicant’s Heads of Argument
at page 2 -3, para 6.