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[2015] ZALCD 8
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Public Servants Association and Another v Department of Justice And Constitutional Development and Others (D627/2012) [2015] ZALCD 8 (20 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no.: D627/2012
DATE: 20 JANUARY 2015
Not Reportable
In the matter between:
PUBLIC SERVANTS
ASSOCIATION
....................................
First
Applicant
KHUMBULANI COLLEN
KHESWA
.................................
Second
Applicant
And
DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
............................
First
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
..............................................
Second
Respondent
COMMISSIONER VEESLA
SONI
..................................
Third
Respondent
Heard: 7 JULY 2014
Delivered: 20 January 2015
Summary: The matter concerned the
review of a finding by the Third Respondent that the First Respondent
had not committed an unfair
labour practice in failing to promote the
Second Applicant. The Applicants contended that the Second Applicant
was the better candidate
on the merits and that the First Respondent
had not justified the preference for appointing a woman to the
position in terms of
a valid employment equity plan. The Court
disagreed and found that the existence of a National Employment
Equity Plan had been
proved and it was not necessary for each region
to have one. Further, the evidence did not support the contention
that the Second
Applicant was otherwise the better candidate. In any
event, even if the Third Respondent had erred, this did not make the
award
reviewable.
JUDGMENT
SCHUMANN AJ
[1] In this matter, the Applicants seek
an order that an award by the Third Respondent acting under the
auspices of the Second Respondent
arbitrating a dispute between the
Second Applicant and the First Respondent be reviewed and set aside.
The Second Applicant had
applied for the position of Director, Court
Administrator - Northern Cape Regional Office and had been
unsuccessful in such application.
He had subsequently referred a
dispute to the Second Respondent, alleging that the First
Respondent’s failure to appoint
him to the position constituted
an unfair labour practice. The matter was heard and dismissed by the
Third Respondent. (Curiously,
the order requested by the Applicants
in these proceedings sought to both confirm the appointment of the
Second Applicant to the
position and have the dispute reheard before
the Second Respondent de novo. In a supplementary affidavit the
Second Applicant confirmed
that he had been subsequently promoted to
a director’s position and only compensation was requested.)
[2] The mechanics of the process that
unfolded in making the appointment to the position are contained in a
memorandum from the
Selection Committee dated 22 February 2010 which
set out the Committee’s reasoning for recommending the
appointment of one
Ms Petunia Mphato to the position. The vacant post
was advertised on 4 October 2009. The advertisement made it clear
that the appointment
would be subject to the employment equity
imperatives in the Employment Equity Act and the human resource
policies of the First
Respondent.
[3] After a short-listing process on 26
January 2010, five shortlisted candidates were interviewed by the
Selection Committee in
the boardroom at the Office of the State
Attorney, Kimberley, on 16 February 2010. Twenty questions were
formulated and members
of the committee scored candidates on their
responses to the questions, which scores were then averaged. The
Second Applicant achieved
the highest overall rating of 18.51, a Mr
AC Thabethe was in second place with a score of 18.33 and Ms Mphato
was in third place
with a rating of 18.03.
[4] The memorandum records that the
panel had agreed, prior to the interviews, that the scores would not
be the determining factor
when recommending candidates for a
subsequent competency assessment, or for appointment to the post.
[5] It is apparent from the memorandum
of 22 February 2010 that the committee did not recommend that the
Second Applicant proceed
to the competency assessment to be conducted
but recommended that only Mr Thabethe and Ms Mphato participate in
the next round
of the process. Mr Thabethe held both an LLB degree
and a National Diploma in Public Administration and had six years’
experience
as an Area Court Manager. In Mphato’s case the
committee felt that she was more solid than the other two candidates
in terms
of fundamental experience in management and an
administrative environment. She had twelve years’ experience in
the Department
of Justice at supervisory and management level,
including four years as a Senior Administration Officer, four years
as an Acting
Deputy Director and four years as an Area Court Manager
in Rustenburg. It was apparent from the table at paragraph 3 of the
memorandum
that Ms Mphato held a degree of Bachelor of Commerce with
Honours and a Master’s degree in Management and Development. On
further comparison based on a psychometric competency assessment
conducted by external consultants, Lead Train Assessments (Pty)
Limited, and the equity profile of the region, the committee
recommended Ms Mphato for the post.
[6] It is apparent from the memorandum
that when it came before Dr K De Wee, the National Chief Operations
Officer, it did not pass
muster as Dr De Wee was of the view that the
Second Applicant should have been afforded the opportunity to
participate in the competency
assessment. Accordingly, the process
was held in abeyance while the Second Applicant participated in a
psychometric evaluation
by the external consultants. The psychometric
reports of all three candidates are contained in the record that was
before the Third
Respondent. On 15 July 2010, a revised memorandum
was issued by the interview committee which included the Second
Applicant and
the competency assessments of all three candidates. The
selection committee unanimously agreed that Ms Mphato should be
recommended
for the post. A contributing factor was that the
appointment of a female candidate would assist in redressing
under-representivity
of females in the region at Senior Management
Level 13.
[7] The recommendation was supported by
both Mr P Du Randt, the Chief Director: Court Services –
National Office and Dr De
Wee, on the basis that the appointment of
Ms Mphato would promote “gender diversity/ employment equity”.
[8] When the matter came before the
Third Respondent she considered the evidence and concluded that
“based on equity and merit”
Ms Mphato “was the most
suitable candidate for the post”. The Third Respondent further
found that there was an equity
plan in place, on which the First
Respondent could rely for preferring the female candidate. The
initial failure to send the Second
Applicant for a competency
assessment was simply an error. She accordingly held that the First
Respondent did not commit an unfair
labour practice and the
application was duly dismissed.
[9] In their founding affidavit, the
Applicants contended that the Third Respondent’s finding was
“clearly flawed”
as the Employment Equity Plan on which
the First Respondent relied was a general plan for the First
Respondent as a whole and not
for specific regions. The Applicants
further contended that the Third Respondent’s finding that the
failure by the interview
committee to initially send the Second
Applicant for a competency test was a “human error” was
insupportable on the
evidence. It was suggested that the process was
not bona fide and that the post had clearly been reserved for another
candidate.
In addition, the Applicants alleged that the finding of
the Third Respondent that Ms Mphato was more qualified or suited for
the
position was in no way linked to the evidence placed before her.
I will examine each of these aspects of the matter.
[10] The First Respondent led the
evidence of its Chief Director and Regional Head, Mr RD Isaacs who
had served as one of the members
of the selection committee and had
drafted the memoranda. He testified that, at the time the decision
was made to send only two
candidates for a competency assessment, the
members of the panel had been of the view that they were the two
highest scoring candidates.
The calculations had been done by the
Chairperson who had made an error which was only pointed out to the
committee after the competency
assessments and prior to the drafting
of the memorandum of 22 February 2010. However, it was apparent that
the difference between
the scores of the top three candidates was
minimal. The committee had also formed a prima facie view, by this
stage, that both
due to the nature of the position and the
department’s transformation imperatives, a woman would be a
more suitable appointee.
Accordingly, the correct information
regarding the scores was included in the memo but the committee did
not deem it necessary
to send the Second Applicant for a competency
assessment and recommended Ms Mphato for the post.
[11] When the matter was sent back by
Dr De Wee and a competency assessment performed on the Second
Applicant, the result did not
alter the committee’s perception
as to who was the most suitable candidate and the recommendation did
not change in the subsequent
memorandum in July.
[12] The Third Respondent accepted
Isaac’s testimony and specifically found him to be a credible
and forthright witness. She
accepted his explanation as to how it
came about that the Second Applicant was initially not sent for a
competency assessment,
which explanation was never challenged in
cross examination during the arbitration. There is thus little basis
on which the Applicants
can maintain the theory that there was a
conspiracy to deny the Second Applicant the position and the point
was not seriously pursued
in argument before me.
[13] Regarding the existence of its
Employment Equity Plan, the First Respondent led the evidence of the
Human Resources Director
of the Northern Cape Region, Mr Mekoa. He
explained the advertisement and selection process generally and
confirmed the existence
of the “Master Employment Equity Plan
for the Department” emanating from the National Office in
Pretoria. He testified
that the various regions would give input to
the National Department on Employment Equity who would then compile
the Master Plan
for the Department as a whole. He confirmed that the
document put up at page 171 and following of the record (titled:
Revised Master
Employment Equity Plan, 1 July 2007 to 30 June 2010)
had been confirmed by the Director General in September 2008 as
evidenced
by the signature on the final page thereof. According to
the tables at page 175 of the record a target of 50% representivity
for
women was set at all levels of management. As at the date of the
Plan, that figure had been exceeded by 7% in junior management
, but had not been achieved at all
other levels of management.
[14] Mekoa further referred to a
circular from the Deputy Director General of the First Respondent of
12 July 2009 which confirmed
that the required levels of
representivity for women and persons with disabilities had not been
achieved and that the Department
would strive to achieve same by
March 2010. Certain positions were “earmarked” to be
filled by particular designated
groups as per an annexure to the
memorandum. Mekoa further testified that the position in question in
these proceedings was not
specifically earmarked for preference to
women or people with disabilities as the position had not been vacant
at the time Circular
53 of 2009 had been produced. However, this did
not mean that the general employment equity goals of the Department
did not apply
to the appointment.
[15] The main thrust of the Applicants’
objection to the Employment Equity Plan was based on the first
paragraph thereof which
stated as follows under the heading
“Introduction and Background”:
‘This document seeks to provide
broad guidelines that can be used by different branches and regions
within the Department
in developing their own Employment Equity
Plans. The document will therefore be general and broad in its
approach. The specifics
and details will, however, be found in the
Employment Equity Plans of the branches and the regions’.
[16] Mekoa confirmed that, despite the
wording of the preamble to the Master Employment Equity Plan, the
regions had not considered
it necessary to draft their own plans and
had simply adopted and applied the broad outlines and percentages
contained in the Master
Plan, as applied to the demographics of their
particular region. He explained that the employment of Ms Mphato in
preference to
the Second Applicant achieved the result that two of
the four management positions at that level were filled by women and
the 50%
target for the region was achieved.
[17] The Third Respondent accepted the
validity of the Master Employment Equity Plan and that the region was
entitled to apply its
principles when appointing Ms Mphato. I concur
with her in this regard. Although the Master Plan seems to have
anticipated that
more specific Employment Equity Plans would be
drafted by the regions I see no reason why such regions could not
have elected to
simply utilise the Master Equity Plan. This is
particularly so in respect of the representivity of women in the
department. On
the assumption that approximately half the population
of this country is female (and that this situation will persist,
barring
any particularly bizarre turn of events) the demographical
considerations are relatively simple. If the regional HR Department
established that there was under representivity in any of the
management levels identified in the Master Plan in the region, it
is
difficult to envisage what more was required to apply affirmative
action principles and favour the appointment of a woman.
[18] As to whether the Second Applicant
was a better candidate on the merits, the case is, at best for the
Second Applicant, somewhat
murky. As previously mentioned, Ms Mphato
held a relevant University qualification at the Master’s level
and would thus appear
to have trumped the Second Applicant as far as
qualifications were concerned.
[19] It is apparent from the memoranda
of 22 February and 15 July 2010 that Ms Mphato had twelve years
relevant managerial experience
with the First Respondent (as set out
above) and had further been employed for three years as a manager
with SASSA at the time
of the selection process. The Second Applicant
testified only that from April 2002 to November 2005 he had been
working for the
Department of Social Development as a Deputy
Director. In December 2005, some four years prior to the
advertisement he had taken
up a Deputy Director’s position with
the First Respondent. At the time of the advertisement he held a
Bachelor of Arts Degree
majoring in Public Administration and
Politics. He confirmed that his experience as a Deputy Director
involved “office and
district administration”. The Second
Applicant bore the onus of proving that he was a better candidate for
the position.
If he indeed held greater relevant managerial
experience than did Ms Mphato, one would have expected him to testify
more fully
in this regard. (While Ms Mphato did not testify at the
arbitration, the contents of the memoranda regarding her
qualifications
and experience were never placed in dispute.)
[20] Although the Second Applicant
scored marginally higher in the interview process than Ms Mphato,
this is hardly a determining
factor. The Second Applicant’s
attorney argued vociferously that the Second Applicant fared better
in the competency assessment
but, as was pointed out in the evidence
of the First Respondent’s witnesses, this was based on a
misinterpretation of the
scores.
[21] A perusal of the assessment of Ms
Mphato and the Second Applicant reveals that the Second Applicant
achieved the “demonstrated
proficiency level” in every
respect and exceeded the requirement in one respect. Ms Mphato’s
scores, so it was contended
on behalf of the Second Applicant,
demonstrated that she had failed to achieve the required proficiency
in one category and had
thus achieved a negative overall score. The
problem with this argument was that it is abundantly apparent from
the test results
that, for some or other reason, the required
proficiency levels were understated in the Second Applicant’s
assessment results
(although all other parameters remained the same),
thereby creating the impression that the Second Applicant had
exceeded the required
proficiency levels and Ms Mphato had not.
However, a simple comparison of the actual proficiency levels
achieved clearly shows
that Ms Mphato outscored the Second Applicant.
[22] On my assessment of the evidence
it is thus appears that, not only did the appointment of Ms Mphato
achieve a desirable employment
equity ratio, but she was more highly
qualified, quite probably more experienced, and she outscored the
Second Applicant in the
competency assessment. (The perception
expressed by members of the interviewing committee that a woman would
be more successful
in managing the interpersonal relationships
between members of the bench and the court administration is a
subjective view, but
one which may not be without merit. However, as
the Second Applicant failed to demonstrate that he was a better
candidate for the
position there is no need to consider this issue
further.)
[23] In my view, the award is cogent
and well reasoned on the evidence. However, even if the Third
Respondent was incorrect in her
assessment of the evidence and
misdirected herself in some respects, this does not make the award
reviewable. I am mindful of the
caveat expressed by the Supreme Court
of Appeal in Herholdt vs Nedbank Ltd and Others
2013 (6) SA 224
(SCA)
and even if the Applicants, criticisms of the award are correct, they
have failed to show any reviewable irregularity committed
by the
Third Respondent. The only such irregularity seriously contended for
by the Applicants’ was that the decision by the
Third
Respondent was one which no reasonable decision maker could have made
on the evidence before her. In light of the lack of
evidence
supporting the conspiracy theory, the clear existence of an
applicable National Employment Equity Plan and significant
evidence
to support the contention that Ms Mphato was the better candidate, I
cannot possibly come to such a conclusion and the
application must
fail. I further see no significant reason why the costs should not
follow the result.
[23] The application is accordingly
dismissed with costs.
Schumann AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicants: E Geldenhuys of
Tomlinson Mnguni James Attorneys
For the Respondents: Advocate L.L.
Ngumle
Instructed by State Attorney
(KwaZulu-Natal)