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[2015] ZALCJHB 371
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Mabunda v Eskom Holdings Ltd and Others (JR2442/2014) [2015] ZALCJHB 371 (27 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2442/2014
In
the matter between:
PORTIA
MABUNDA
Applicant
and
ESKOM
HOLDINGS LTD
COMMISSION
FOR CONCILIATION, MEDIATION
First Respondent
AND
ARBITRATION
Second Respondent
COMMISSIONER
JS MAAKE
N.O
Third Respondent
Heard
:
6 October 2015
Delivered
:
27 October 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an unopposed application to review and set aside an
arbitration award issued
by the third respondent, to whom I shall
refer as ‘the commissioner’. In his award, the
commissioner held that the
dismissal of the applicant by the first
respondent was substantively fair.
Factual
background
[2]
The material facts are recorded in the commissioner’s award and
I do not intend
to repeat them here. The applicant’s dismissal
had its roots in a series of largely undisputed events in which the
applicant,
a human resources officer, received a proposed short list
of candidates for a vacant post from the manager of the technical
department
concerned, a Mr. Strauss, and altered it by substituting
the names of three candidates with three others, one of whom was her
sister.
It is common cause that the applicant’s sister was
interviewed and appointed, and that the applicant had no role in the
interview
and ultimate selection of successful candidates, other than
her intervention in the shortlisting process.
[3]
At her disciplinary enquiry, the applicant was called upon to answer
to two charges.
The first related to an alleged failure to comply
with the first respondent’s policies, in that during March
2013, she acted
irregularly during the recruitment and selection
process by disqualifying candidates for a vacant post in favour of
her biological
sister who as a result, was employed by the first
respondent. The applicant was also charged with misconducting herself
in a way
that is unacceptable in terms of the first respondent’s
values and ethics by first, failing to declare the personal
relationship
with her biological sister (which was alleged to
constitute a conflict of interest and secondly, that during the
recruitment process,
the applicant shortlisted her biological sister
without declaring her relationship with her. It is common cause that
the applicant
was found guilty on the first charge, and dismissed on
that basis.
The
award
[4]
In the course of the arbitration proceedings, the commissioner sought
clarity on the
nature of the charges brought against the applicant.
He makes specific reference to this issue in his award and at
paragraph [30],
he says the following:
The
formulation and structures of the charges are inelegant and confusing
in that the disciplinary hearing notice speaks of misconduct
2.1,
misconduct 2.35 and counts 1 and 2. It is therefore not clear whether
or not the former to misconduct or stand-alone charges,
separately
preferred from the letter to or whether or not four separate charges
were preferred against the applicant. What is clear
however, is that
according to page 2A of exhibit “A”, the applicant was
dismissed on misconduct 2.1, of having, during
the period March 2013,
acted irregularly during the recruitment and selection process,
disqualified candidates in favour of her
biological sister, who, as a
result thereof, was appointed in the position of Officer Key Customer
Relations.
[5]
The commissioner went on to confine himself to the question of
whether or not the
applicant had committed the misconduct described
above, i.e. whether the applicant had committed misconduct by
disqualifying other
candidates in favour of her biological sister. He
recorded the following as common cause:
[33]
That according to the advertisement on pages 5 - 7 of exhibit “B”,
the closing date
for applications for the job in question was 7
th
March 2013. That Ellen Mnisi [the applicant’s sister] was not
included in the candidate list, on pages 8-38 of the exhibit,
for
shortlisting purposes. That, by an email dated 8
th
March
of that year, a day after the expiration of the application
dead-line, she, the applicant, had asked\told Ellen Mnisi to
send her
CV and that the latter accordingly obliged on the same date. That per
an email by the applicant to Strauss, dated the
same date, the
applicant informed Strauss of the substitution of three shortlisted
candidates with three others, one of whom was
Ellen Mnisi. That
later, on the same date, by email to the applicant by Strauss, he
furnished her with a shortlist of certain candidates.
That by an
email dated 11 March 2013, addressed to Strauss by the applicant, she
confirmed to him the said substitution and asking
him to respond
thereto, to enable her to finalise the shortlist, to which he did not
express an opinion. That throughout this,
Strauss was not informed by
the applicant and was therefore unaware that she and Ellen Mnisi were
biological sisters and that,
by email, page 67 of the exhibit, he
recorded this fact.
[6]
The commissioner concluded the following:
The
long and short of the foregoing facts is that after the late
unconventional submission of a C.V by the applicant’s sibling
directly to her, the applicant failed to disclose a potential
conflict of interest to her line manager during the recruitment
process as required by clause (f) of the applicable Recruitment and
Selection Procedure, which is pages 41-2 of exhibit and what
is more,
proceeded to alter the shortlist compiled by Strauss, by substituting
three shortlisted candidates, with three others
and significantly so,
one of whom was Ellen Mnisi, her sibling and at this stage, the risk
of repetition, Strauss or her line manager,
the human resources
manager, had not been informed by the applicant and were unaware,
that Ellen Mnisi was her sibling.
[7]
The commissioner rejected the applicant’s version in the
following terms:
[35]
The applicant denies that she disqualified other qualified
candidates by the deletion from the shortlist and substitution
thereof
by others, one of whom was Ellen Mnisi, on the grounds that,
those deleted from the shortlist, were already on posts, the level
whereof was the same as the advertised post. The respondent was
correct in disputing argument, on the basis that people apply for
positions not only for promotion purposes but for other reasons as
well.
[36]
There hangs in the air, and inexplicable pungent with of a smell of
suspicious coincidences in
this matter, of which, in the absence of a
plausible explanation by the applicant, lends credence to the
respondent’s case…
Grounds
for review
[8]
The applicant does not articulate her grounds for review in precise
terms. The founding
affidavit, deposed to by an employee of the legal
unit of the National Union of Mineworkers, simply reflects the three
grounds
of review established by s 145. What follows is a list of
findings made by the commissioner, without any specific averment of
the
extent to which, if any, the findings are not supported by the
evidence. The high water mark of the applicant’s claim is that
the commissioner ‘based his findings on suspicions and
speculations, and not on facts…’.
[9]
In the supplementary affidavit, to which the applicant deposed,
incorporate grounds
for review that appear to relate to alleged acts
of misconduct and gross irregularity on the part of the commissioner
in respect
of specific findings made by him. I do not intend to
traverse all of these findings but the gist of the applicant’s
complaint
is that there is no evidence on record to justify them.
[10]
It is, of course, not permissible for an applicant in proceedings
such as the present to make
out a case in the heads of argument, but
much is made in the heads of the fact that contrary to the content of
the charge on which
the applicant had been dismissed and the basis on
which the dismissal had been upheld by the commissioner, the
applicant did not
disqualify other qualified candidates. The
applicant contends that she simply held the view that because there
were not appropriate
candidates for the positions, not because they
do not have the qualifications required for the post, but because
appointment to
the post would not have any benefit for them as they
were already on the same salary scales in the positions that they
held, she
did no wrong. This is particularly so after Strauss, having
read a recommendation, removed the candidates from the shortlist. All
the applicant says that she did was to express a view, which she
contends does not amount an act of misconduct.
[11]
In short, the case to be gleaned from the papers is that the
commissioner’s findings are
not sustainable by reference to the
evidence that served before him.
Analysis
[12]
The grounds on which this court is entitled to interfere in a
commissioner’s award are
well-established. This court may set
aside an award if and only if the award represents a decision to
which no reasonable decision-maker
could come on the available
material. Insofar as the applicant relies on what is contended to be
a gross irregularity committed
by the commissioner, it is incumbent
on the applicant not only to establish the existence of a reviewable
irregularity, but also
to establish that notwithstanding the
commissioner’s conduct, the result of the proceedings falls
outside of a band of decisions
to which reasonable people might come.
This test serves to preserve the distinction between a review and an
appeal. In
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA),
the Supreme Court of Appeal made clear that for a defect in the
conduct of proceedings to amount to a gross irregularity
as
contemplated by s 145(2)(a)(i), the commissioner must have
misconceived the nature of the enquiry or arrived at an unreasonable
result. The court emphasised that 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. It is
only if their effect is to render the outcome of the
proceedings
unreasonable that these factors are of any consequence (at paragraph
25 of the judgment). In the circumstances, it
is not sufficient in an
application such as the present simply to assert that an arbitrator
failed to attach sufficient weight
or relevance to particular facts,
or incorrectly attached weight and relevance to particular facts. An
applicant must establish
either that the arbitrator misconceived the
nature of the enquiry or arrived at an unreasonable result. Where an
applicant asserts
the latter (which is what the applicant in the
present instance does) a case must necessarily be made that the
result of the proceedings
under review is one that a reasonable
arbitrator could not reach on all of the material that served before
the arbitrator.
[13]
The applicant’s papers do not make out a case on this basis.
The applicant contests a series
of factual findings made by the
commissioner and the inferences drawn from those, and submits that
these are not sustainable by
the evidence that served before him. For
the reasons stated above, the applicant’s failure to aver and
to establish that
any misdirection on the part of the commissioner
had the result of an unreasonable outcome serves to blur the
distinction between
an appeal and a review. The application stands to
be dismissed for that reason alone.
[14]
Even if I were to afford the applicant’s papers a generous
reading and infer a basis for
a reasonableness review, in my view,
the result of the proceedings, in the form of a finding that the
applicant had been fairly
dismissed, cannot be described as
unreasonable. During argument, the applicant’s representative
submitted that the commissioner
had failed to appreciate that the
applicant had been dismissed only in respect of what was referred to
as misconduct 2.1, i.e.
that she acted irregularly during the
recruitment process by disqualifying other qualified candidates in
favour of her biological
sister. What the submission overlooks is
that the commissioner was acutely alive to that issue. In paragraph
30 of the award, quoted
above, he specifically records that he
confines himself to the question of that misconduct and not the
additional charges of conflict
of interest or the applicant’s
failure to declare her relationship with a shortlisted candidate. At
paragraph 35 of the award,
the commissioner clearly rejects the
applicant’s version that she had disqualified certain
candidates and substituted them
with others, including her sister, on
the basis that those disqualified were already in place at the
appropriate level. The fact
that Strauss acted on her recommendation
is neither here nor there – the evidence clearly discloses that
he relied and acted
on her advice given the applicant’s
function as a human resources manager. In short, the evidence
disclosed that the applicant
received a proposed short list from
Strauss, that she deleted the names of three candidates, two of whom
she considered unsuitable
because they were employed on the same
level as the vacant post and one of whom she considered did not meet
the minimum requirements,
that she substituted three different
candidates, one of whom was her sister, that she sent the revised
list to the technical manager
without disclosing the fact of her
relationship with her sister, and that her sister was subsequently
employed by the first respondent.
It was incumbent on the applicant
in her capacity as an adviser on recruitment and selection to the
first respondent’s management
to have acted with integrity. She
failed to do so.
[15]
In short, the applicant has failed to establish that the commissioner
committed a reviewable
irregularity or that the result of the
proceedings fails to meet the reasonableness threshold. The
application therefore stands
to be dismissed.
I
make the following order:
1.
The application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPERANCES
For
the applicant: MES Makhinta, Makhinta Attorneys