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[2015] ZALCJHB 458
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Mphahlele and Another v Anglo Platinum Mines (Union Section) and Others (JR2287/11) [2015] ZALCJHB 458 (15 December 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: JR2287/11
In the matter between:
MATUKU
MPHAHLELE
First
Applicant
NATIONAL
UNION OF
MINEWORKERS
Second
Applicant
and
ANGLO
PLATINUM MINES (UNION
SECTION)
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
SAM
ALIDZULWI MUVHANGO
N.O.
Third
Respondent
Date
heard
: 09 September
2015
Date
delivered :
15 December 2015
Summary:
Decision to promote falls within prerogative of the employer.
Facts not placed before arbitrator cannot
be relied upon in the
review application. Unfair Labour Practice not established.
Review application dismissed.
JUDGMENT
BALOYI
AJ
1.
The First Applicant Matuku Mphahlele,
represented by the trade union, National Union Mineworkers approached
this court seeking review
and set aside of the Third Respondent’s
arbitration award. Mphahlele is cited as First Applicant while
the trade union
is cited as Second Applicant. The arbitration
award was issued consequent to his unfair labour practice dispute
referred
to the Second Respondent. In his award, the Third
Respondent made a finding that the First Respondent did not commit
unfair
labour practice towards the First Applicant and went on to
dismiss his claim. The Applicants relied on grounds of review
as set out in the founding and supplementary affidavits. Specific
points were during arguments brought to the court’s attention
in support of Applicants’ case, details of which appear herein
below. The review application together with condonation application
for late filing of the review application are opposed by the First
Respondent.
Background
to the dispute
2.
On or about 31 July 2007 the Applicant and
First Respondent entered into employment relationship wherein the
First Applicant was
appointed as Community Engagement Development
Officer (CED Officer). In 2009 the First Applicant’s position
became redundant
due to restructuring exercise embarked upon by the
First Respondent. A position of Community Engagement Development
Co-ordinator
(CED Co-ordinator) was created and advertised. The First
Applicant was invited to apply for appointment in the said new
position.
The position was at a level higher than that of CED
Officer. If the First Applicant was appointed to the position,
promotion would
have resulted. The First Applicant responded by
applying as invited and was duly interviewed. At the end of the
recruitment
process he was informed that his application was
unsuccessful. A certain Mr Tshepo Maphutse was appointed to the
position
in question. Aggrieved by the developments he referred
unfair labour practice dispute to the CCMA. The instant review
application
is the aftermath of the arbitration proceedings which
resulted into an award currently under scrutiny.
Condonation
application
3.
The
filing of the review application was out of time by two weeks
counting from the date of the award. The explanation given
for
the delay deserves no comprehensive detailing as it hits straight to
the point. What appears indisputable in the application
and
surely crucial is that the First Applicant received the award from
the First Respondent. It is not known as to when did
the First
Respondent receive the award from CCMA. It is also not in
dispute that the Applicant and his trade union did not
receive the
award from CCMA. Mr Makinta for the First Applicant submitted
that since there was no service of the award as
set out in section
145(1)(a) of the LRA, there was therefore no need to apply for
condonation. This submission was not countered.
The First
Respondent’s only contention is that the averments made in the
founding affidavit lack evidentiary value in the
absence of
confirmatory affidavits of persons mentioned therein. It is under the
circumstances undeniable that the Applicants made
a valid point in
this regard. I have taken guidance from
Queenstown
Fuel Distributors CC v Labuschagne NO & Others
[1]
and the only conclusion to arrive at is that there was indeed no
condonation application required. What follows is that there is
no
need to look further into the merits of the condonation application.
Merits
of Review
4.
The Applicant’s contentions in their grounds are heavily rested
on:
-
First Respondent’s having obtained the award
in an improper manner by misleading the Third Respondent on facts of
the dispute;
-
The Third Respondent’s misconception of the law on issues
before
him,
-
misconduct in relation to Third Respondent’s failure to
investigate
interview matrix and whether he conceded to having
contractual right to promotion,
-
Third Respondent’s misunderstanding of the issue whether the
First Applicant had fair opportunity to compete.
5.
What can be drawn from the lengthy propositions made by the Applicant
is that he was a best candidate. The First Respondent
should
have appointed him instead of Maphutse. Unfairness came as a
result of First Respondent’s failure to compare
his
qualifications to those of Maphutse who had an irrelevant degree for
the position. The Third Respondent followed suit
by not
investigating the subject. The scoring on interview matrix was
unfairly applied and the Third Respondent failed to
come to First
Applicant’s rescue. Mr Makinta argued further that the
Third Respondent failed to take into account that
no scores of
individual panelists were presented by the First Respondent and no
comparison was made between the First Applicant’s
answers and
those of Maphutse.
6.
Ms Norton for the First Respondent pointed that Maphutse’s
Masters degree was higher than the First Applicant’s B
degree.
The argument that the First Applicant was better qualified cannot be
sustainable. The issue of comparing interview
questions and
answers was never placed before the Third Respondent. The First
Respondent’s evidence was that First
Applicant’s
performance during interview was less as he scored 11.75 while
Maphutse scored 16.08. The First Applicant conceded
to having been
given fair opportunity to compete.
E
valuation
7.
It deserves to be stressed that reasonableness is the beginning and
the end in determining whether the arbitration award is reviewable
or
not. The cumulative effect of the test laid down in
Sidumo
case
[2]
is that the decision made in the award should not be merely
unreasonable but unreasonable to a degree that no decision maker
could
have made. It is therefore not an absolute consideration
that the reviewing court would have arrived at different finding
had
it been an arbitrator. The difference between appeal and review
is easily drawn in situations of this nature.
8.
The Supreme Court of Appeal restated the reasonableness test in
Hertholdt
v Nedbank Ltd
[3]
wherein the following was said in paragraph 25;
“
[25]
In summary, the position regarding the review of CCMA awards is
this: A review of a CCMA award is permissible
if
the defect in the 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 inquiry 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 and of
themselves sufficient for an award to be set aside, but are
only of
any consequence if effect is to render the outcome unreasonable”
9.
In this instant case the Applicants in expansion of their grounds
made it clear in the supplementary affidavit by extracting
the cream
of his case for the court’s attention, specifically in
paragraph 18 where he had this to say:
“
It
was my case that I was entitled to be fairly considered for the
position, as I applied for it, and a fair consideration would
have
led to my appointment, as I was the best candidate on the information
properly before the arbitrator.” (sic)
10.
It was not in dispute that the First
Applicant’s application was given consideration
inter
alia
on the basis of his qualifications
and experience hence he was shortlisted. Secondly he was
invited for interview together
with other shortlisted candidates for
the position. It further became common cause that the interview
process resembled a
competition between the shortlisted candidates.
In other words it was acceptable that the best candidate was the one
to walk away
with glory of being appointed to the position in
question. The Third Respondent recorded in his award that First
Applicant conceded
to have been given a fair opportunity to compete.
On the other hand the First Applicant himself in paragraph 28.1 of
supplementary
affidavit contends he did not concede that he was given
fair and equal opportunity to compete for the position.
11.
While the First Applicant denied having
been afforded a fair opportunity to compete, the record interestingly
states otherwise.
To be precise the record is consistent with
what the Third Respondent recorded in the award. The First
Applicant attempted
to create a different meaning to this point by
accusing the Third Respondent of having misunderstood issues and
evidence before
him. In a twisted fashion the gist of the
dispute was according to the First Applicant that he had been
unfairly and unequally
disadvantageously treated. This is certainly
raised in this review application and it has been thrown now and
labelled Third Respondent’s
misunderstanding. No attempt was
made to explain the concession while the matter was still before the
Third Respondent. Since
the concession is, disingenuously so
denied, further dealing with the attempt to justify same will result
in futility.
12.
Turning to the second point of the cream of
the First Applicant’s case, namely, that he was the best
candidate. The
Applicants’ contention is in two legs,
that he was the best candidate and that the score card had
discrepancies. On
both complaints he compared himself to the
successful candidate, Maphutse. Third Respondent is attacked for not
considering that
the First Applicant’s qualifications were more
relevant to the position than those of Maphutse. This argument stands
to fail
because it was not put to any of the First Respondent’s
witnesses. Furthermore the First Applicant himself never dealt
with the issue in his evidence.
13.
Similarly the allegation of discrepancy on
score card is bound to fail. The First Applicant never tendered
evidence in demonstration
as to why the score card should be found to
have had discrepancies. The First Respondent’s conceded to the
possibilities
of the score card having discrepancies, however such
discrepancies were of such nature that if corrected the result would
not turn
around the tables to favour the First Applicant. It deserves
to be said that this argument of discrepancy is not founded on
evidence
because the First Applicant’s evidence before the
Third Respondent contains not even single averment to the effect.
In the absence of such evidence it is difficult to see how the Third
Respondent could have made a finding against the First Respondent.
14.
As I
am dealing with unfair labour practice dispute, I keep on reminding
myself as to who of the parties bore the onus of proof
under the
circumstances. The answer is within the finger tips, that is
the employee. In this regard it is undoubtedly the
Applicants. At the
same time it must be borne in mind that appointment of a candidate to
a position is entirely within the employer’s
prerogative.
The court will only interfere when
mala
fides
is proved. (See
Goliath
v Medscheme (Pty) Ltd
[4]
).
It has not been brought to the attention of this Court as to why the
First Respondent had to begin in leading evidence
during
arbitration. It would seem that the Applicants lost focus in
the light of this sequence events and handled the matter
on the
belief that the party who bore the onus is the First Respondent.
This approach had sadly filtered through to the level
of this review
application. Generally, (which is definitely the case in this
matter) employers shortlist candidates on the
basis that they are all
sufficiently qualified for the position. The mere allegation
that the First Applicant was sufficiently
qualified cannot give rise
to unfair labour practice. To this end the Third Respondent’s
decision cannot be held to be the
one that a reasonable decision
maker could not reach.
15.
In essence there is no reason for interference with the Third
Respondent’s arbitration award. Both parties moved for an
order
that costs should follow the result. I see no reason for
deviation from the submissions.
O
rder
16.
In the premises the following order is made:
16.1
The review application is dismissed with costs.
___________________
BALOYI AJ
Acting Judge of the
Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr ES Makinta
Instructed
by:
ES Makinta Attorneys
For
the Respondent:
Ms D Norton
Instructed
by:
Mkhabele Huntley Adekeye Inc.
[1]
2000 (1) BLLR 45
LAC
[2]
Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007]
12 BLLR 1097 (CC)
[3]
2013 11 BLLR 1074 (SCA).
[4]
1996 5 BLLR 603
IC