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[2015] ZALCD 7
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Swarts v National Commissioner South African Police Services and Others (D915/13) [2015] ZALCD 7 (20 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no. D915/13
DATE: 20 JANUARY 2015
Not Reportable
In the matter between:-
E P
SWARTS
.......................................................................
Applicant
And
NATIONAL COMMISSIONER SOUTH AFRICAN
POLICE
SERVICES
.............................................
First
Respondent
ASHA SEWPERSAD
NO
.................................
Second
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
.................................
Third
Respondent
AN
SIKHAKHANE
...........................................
Fourth
Respondent
Heard: 8 January 2015
Delivered: 20 January 2015
Summary: Review in terms of S145 –
unfair labour practice – promotion – Arbitrator failed to
apply her mind to
whether the candidate appointed to the post met the
advertised requirements for the post – award reviewable.
JUDGMENT
NAIDOO AJ
[1] This is an application to review
and set aside the arbitration award by the second respondent (“the
arbitrator”)
dated 8 August 2013.
[2] The arbitrator found that the
applicant has failed to prove that the decision not to promote her
constituted an unfair labour
practice and the application was
accordingly dismissed.
Background facts
[3] The applicant who holds the rank of
Captain has been in the employ of the first respondent since 14
January 1987. She has held
the position of Staff Officer to the
Deputy Provincial Commissioner: Operations since 1 October 2000.
[4] On or about 15 June 2011, the
vacant post of Staff Officer to the Provincial Commissioner (Post no.
7/06/11 - level 10) was
advertised internally. On 21 June 2011, the
post and the advertisement were withdrawn by the Provincial
Commissioner.
[5] On 3 July 2011, the same post was
advertised externally in the Sunday Times newspaper. The applicant, A
N Sikhakhane (“fourth
respondent”) and Captain M Mhlongo
were amongst the candidates shortlisted and interviewed for the post.
The fourth respondent,
who is a personal assistant and the only
candidate amongst the final six who did not hold the rank of Captain,
scored the highest
during the interview with 64.4%. The applicant
scored the second highest with 61.1% and Captain M Mhlongo scored the
third highest
with 57.7%.
[6] The selection panel made the
following recommendation:
‘A N Sikhakhane is recommended
(sic) if she can’t take the post Capt M Mhlongo is recommended
due to equity followed
by Capt E P Swarts. Should non (sic) of the
recommended candidates take up the post it should be re-advertised’.
[7] The fourth respondent was appointed
to the post with effect from 1 January 2012.
[8] The applicant referred an unfair
labour practice dispute to the third respondent regarding the failure
to promote her to the
post. She sought a protected promotion
alternatively, compensation. Prior to the conciliation and subsequent
arbitration of the
dispute, the applicant applied to have the fourth
respondent joined as a party to the dispute on the basis that she had
a substantial
interest in the outcome of the proceedings. Captain
Mhlongo was not joined as a party to the proceedings.
[9] The arbitrator made the following
findings:
‘In this instance I am not
satisfied that the applicant has proven to me that but for the unfair
conduct, she would have been
appointed, because according to the
preferred list of candidates, (Sikhakhane) scored the highest whilst
the applicant scored the
second highest, but notwithstanding that in
the event of (Sikhakhane) not taking the post, Capt Mhlongo who
scored third highest
was recommended because of equity followed by
the applicant.
…..The applicant’s
contention is that she stood out head and shoulders above Sikhakhane
who was merely a typist and
it was impossible for Sikhakhane to have
scored the highest. However there were no documents available and
hence nothing to suggest
that the panel did not apply their minds in
appointing Sikhakhane.
The applicant also testified that there
were no documents at the arbitration to indicate that Sikhakhane
would have within a reasonable
period of time have acquired the
ability to perform in the post; that the panel considered (sic) their
minds because there was
no equity plan which was considered by the
chairperson and there was no evidence of satisfactory performance by
Sikhakhane or the
second candidate and no documents to prove their
suitability for the post.
….In this case the employee did
not even prove any unfair conduct, let alone a causal connection
between non appointment
and alleged unfair conduct.
I find that the applicant has failed to
discharge the onus of proving, on a balance of probability, that the
decision not to promote
her, constituted an unfair labour practice
towards her’.
The requirements for the post
[10] The requirements for the post as
advertised was a relevant NQF 6 or equivalent qualification with
three years proven managerial
experience in the specific field. It is
common cause that an NQF 6 is a three year degree or diploma.
[11] It is further common cause that
the fourth respondent only had a matric qualification which is the
equivalent of an NQF 4.
Additionally, she did not appear to meet the
three years managerial experience criterion. Major General Radebe who
was a member
of the selection panel testified that the fourth
respondent had indicated during the interview that she did perform
some of the
functions of the person who previously occupied the
vacant post after he resigned. Even if her representations are
correct, it
could not have been for a period of at least three years
as required. More importantly, the shortlisting for the post would
have
been done on the basis of the fourth respondent’s
application and her curriculum vitae amongst other supporting
documents.
There is no indication in any of those documents that she
performed any functions beyond her post as personal assistant.
[12] Had the arbitrator applied her
mind to the evidence and the other material before her, she ought to
have found that the fourth
respondent did not satisfy the
requirements for the post and should never have been shortlisted. It
follows that her appointment
to the post is irregular and falls to be
set aside (Manana v Department of Labour
[2010] 6 BLLR 664
(LC).
[13] Whilst the appointment of the
fourth respondent constitutes unfair conduct on the part of the first
respondent, this does not
entitle the applicant to the relief that
she seeks, that is, a protected promotion. In the case of Minister of
Safety and Security
v SSSBC and Others
[2010] 9 BLLR 965
(LC) it was
held that awards of “protected promotions” are
permissible only where it is clear from the evidence that
an employee
would have been employed but for the unfair labour practice. In this
case, the disqualification of the fourth respondent
is not the end of
the matter.
[14] In terms of the recommendation of
the selection panel, Captain Mhlongo is to be appointed to the post
in the event that the
fourth respondent is unable to take up the
post.
[15] The evidence at the arbitration
and the content of the award do not deal with the possible
appointment of Captain Mhlongo.
The letter of appointment only
mentions the fourth respondent and it is unclear whether Captain
Mhlongo is automatically appointed
to the post in these
circumstances. No evidence was led about whether he qualified to be
shortlisted or to be appointed on merit
or on the basis of equity.
These are aspects of the enquiry that need to be fully canvassed
before there can be any proper finding
on whether the failure to
promote the applicant constitutes an unfair labour practice.
[16] I am of the view that it would be
inappropriate for me to make any final determination on the record as
it stands. It is accordingly
necessary to refer the matter back to
the third respondent for a proper determination once the necessary
evidence has been considered.
Costs
[17] Both parties have asked that costs
follow the result.
[18] The applicant has been
substantially successful and there is no reason why she should not be
awarded the costs of the application.
Order
[19] I make the following order:
(a) The arbitration award dated 8
August 2013 and issued by the second respondent under case number
PSSS 263-12/13 is hereby reviewed
and set aside.
(b) The appointment of the fourth
respondent to the post of Staff Officer to the Provincial
Commissioner (Post no. 17/6/2011) is
hereby set aside.
(c) The matter is remitted back to the
third respondent for a hearing de novo before a different arbitrator
for a determination
on whether the failure to appoint the applicant
to the post constitutes an unfair labour practice.
(d) The first respondent is ordered to
pay the costs of the application.
Naidoo AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicant: Ms A Naidoo
Instructed by R Ramdayal Attorneys
For the First Respondent: Mr N S V
Mfeka
Instructed by: State Attorney