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[2015] ZALCD 23
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Govender v South African Police Service and Others (D726/2013) [2015] ZALCD 23 (7 May 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case
no: D726/2013
DATE:
07 MAY 2015
Not
Reportable
In
the matter between:
KAMALANATHAN
GOVENDER
.........................................................................................
Applicant
And
SOUTH
AFRICAN POLICE
SERVICE
....................................................................
First
Respondent
SAFETY
AND SECURITY
SECTORAL
..............................................................
Second
Respondent
BARGAINING
COUNCIL
FAAIZA
SYED
............................................................................................................
Third
Respondent
LT.
COL. G.D.
JOSEPH
..........................................................................................
Fourth
Respondent
Heard:
09 September 2014
Delivered:
07 May 2015
Summary:
Review
— public sector protective promotion; application
for advertised post not considered - no reasons given for
non-consideration
of application; failure to provide reasons renders
conduct inherently substantively unfair.
JUDGMENT
MOOKI
AJ
[1]
The applicant is a captain in the South African Police Services (“the
SAPS”). The SAPS advertised posts for
“Crime
Prevention Commander” to be stationed at Hillcrest (post 2607)
and at Umlazi (post 2608), both in the Durban
South jurisdiction.
Both posts had the same post description and minimum requirements.
The same panel, with the same official presiding
on both panels,
considered applications for the two posts. The applicant applied to
be considered for each of the posts.
[2]
The panel placed the applicant on the preferred list for the
Hillcrest post. He was not appointed because of equity
considerations.
He did not challenge his non-appointment. The panel
did not screen, shortlist or evaluate the applicant’s
application for
post 2607. The fourth respondent was appointed to
post 2607. The applicant launched an internal grievance. This
culminated in arbitration
proceedings, in which the applicant alleged
that the SAPS committed an unfair labour practice towards him in
relation to his application
for post 2607.
[3]
The Commissioner described the issue to be decided as whether the
SAPS committed an unfair labour practice in failing to evaluate
the
applicant’s application, shortlist him and furnish reasons for
his non-appointment and; if so, the appropriate relief.
The
Commissioner gave the following award:
“
8.
AWARD
8.1
The respondent has committed in unfair labour practice.
8.2
The applicant is awarded the amount of 2 months compensation at his
salary level 8.
8.3
Payment of this amount is to be made within 30 days of date of
service of the award on the respondent.
8.4
There is no order as to costs.”
[4]
The applicant seeks to have the award reviewed and set aside. The
second to fourth respondents do not oppose the application.
The
applicant relies on the following grounds:
4.1
The applicant was not given a fair opportunity to compete for the
post.
4.2
The Commissioner did not consider evidence that the applicant was the
most meritorious candidate and that the applicant would
have been
promoted.
4.3
The Commissioner misconstrued the dispute that she was required to
determine.
4.4
The Commissioner failed to apply her mind to a material issue.
[5]
The applicant seeks relief that:
“
1.
The arbitration award dated 7
th
June 2013 of the third
respondent is hereby reviewed and set aside.
2.
The applicant be and is hereby awarded with protected promotion to
the rank of Lt. Colonel dated retrospectively to 2005-12-01
with full
financial benefits associated thereto.
3.
Any other relief as deemed fit by the above Honourable Court.”
[6]
The SAPS filed a cross-review to have the award reviewed and set
aside, and for the main review application to be dismissed.
The
applicant opposes the cross-review.
[7]
It was submitted on behalf of the applicant that the Commissioner
ultimately had to make a determination with reference to two
main
considerations. First, that the applicant was not given a fair
opportunity to compete for post 2607 when the panel failed
to screen,
assess or shortlist the applicant. It was submitted that the third
respondent failed to have regard to the prejudicial
effect that was
visited on the applicant as a result. Second, it was submitted that
the Commissioner ignored the undisputed evidence
that the applicant
was the most meritorious candidate. In this regard, it was submitted
that the third respondent, in his analysis
of the evidence, did not
attribute any material relevance to the fact that the applicant
proved that he was a most meritorious
candidate and that he ought to
have been promoted to the post.
[8]
The panel was obliged to deal with the applications in terms of the
SAPS National Instruction 1/2004, the applicable promotion
policy at
the time. The applicant contended that he was the more meritorious
candidate in terms of all the criteria set out in
the national
instruction. The SAPS did not dispute this during the arbitration.
The SAPS did not give evidence as to why the panel
did not consider
the applicant’s application for post 2607. The SAPS do not
dispute, in any real way, that the evaluation
panel did not comply
with the terms of the national instruction. Indeed, the SAPS did not
lead evidence during the arbitration.
[9]
The SAPS make unsubstantiated denials in its opposing affidavit. Such
denials include that the applications for the two posts
were not
considered by the same chairman and panelist. There is no evidence in
the record to support the denial. It bears repeating
that the SAPS
did not lead evidence during the arbitration.
[10]
Brigadier Wayne Nixon McCullough deposed to the affidavit on behalf
of the SAPS. He did not participate in the arbitration
proceedings.
His knowledge of the dispute is based on a reading of the record of
the arbitration. He says, in his affidavit, that
the Commissioner did
not apply her mind to the facts and that the Commissioner gave a
ruling in favour of the applicant on the
face of “overwhelming
evidence” against the applicant. Brigadier McCullough does not
particularise the “facts”
or “overwhelming
evidence” that support setting the award and dismissing the
review application as prayed for by the
SAPS.
[11]
It is my impression that the opposition to the review is not earnest.
It seems to me that the opposition and the cross-review
were intended
to frustrate a final determination of the dispute between the
applicant and the SAPS.
[12]
The SAPS did not lead evidence during the arbitration. The SAPS
cannot, in review proceedings, seek to make a case that was
not
advanced before the Commissioner during the arbitration. This court
exercises its power of review only with regard to the decision
by the
Commissioner arising from what transpired during the arbitration.
[13]
The Commissioner concluded that the SAPS committed an unfair labour
practice by failing to comply with procedures governing
the process
of promotion, but that the applicant was not entitled to protective
promotion because, according to the Commissioner,
the applicant “…
agreed that all he sought was a fair opportunity to compete and that
he was aware that there was
no guarantee that he would be appointed.”
The Commissioner found that there was no nexus between the relief
sought by the
applicant and the evidence. She also found that such
relief (i.e. protective promotion) would be a disproportionate
remedy.
[14]
The Commissioner also found, in considering the matter, that “given
the lapse of time that has past (sic) and the ramifications
of an
order to set aside the appointment in these particular circumstances,
I find that compensation is the only appropriate relief
to order to
cure (sic) the procedural defect of failing to evaluate and even
shortlist the applicant and furnish reasons for such
a failure”.
[15]
The Commissioner determined that the SAPS committed an unfair labour
practice. The Commissioner erred, however, in her finding
that the
manner in which the South African police dealt with the applicant’s
application for post 2607 was a “procedural
defect”. It
had a substantive effect.
[16]
The fact that the applicant’s application for post 2607 was not
even considered; with no reasons at all by the SAPS,
renders the
conduct by the SAPS inherently substantively unfair. That is because
the SAPS, in failing to even consider the application,
could never
account for why the applicant could not have been a suitable
candidate. This court held in City of Tshwane Metropolitan
Council v
SALGBC & Others
[1]
that “if
a candidate ought to have been successful based on legitimate
criteria used by an employer, but the employer cannot
provide a
rational explanation for that person’s non-appointment, then an
arbitrator might be justified in regarding that
non-appointment as
unfair”. The finding in this matter is compounded by the
undisputed evidence that the applicant was the
more meritorious
candidate. The Commissioner did not take this evidence into account.
[17]
The Commissioner, when one has regard to the award, appreciated the
wrong done to the applicant. She however laboured under
the
misapprehension that too much time had elapsed and that it would not
be appropriate to “set aside” the appointment
of the
fourth respondent. This court pointed out in Minister of Safety &
Security v Safety & Security Sectoral Bargaining
Council &
Others
[2]
that victims of a
blatant unfair labour practice cannot be left without a remedy. The
court also pointed out that the fact that
a position has been filled
is not a bar to an arbitrator not ordering a person to be promoted.
[18]
The finding by the Commissioner that compensation “is the only
appropriate relief” is not one that a reasonable
decision-maker
could have made. I do not consider that it would be just to remit the
review for consideration by a different Commissioner.
I find that the
court, and having regard to the record, is in as good a position to
make a final determination.
[3]
I
agree that the irregularities and unfairness in not shortlisting the
applicant, the lack of justification by the SAPS, the applicant’s
undisputed evidence that he was the more superior candidate, all
taken together, qualified the applicant for promotion. The applicant
ought to have been promoted.
[19]
The finding by the Commissioner that the infringement by the SAPS was
a mere procedural defect is unsustainable. The record
does not
support the conclusion that the applicant’s case was that he
only wanted “a fair opportunity to compete”.
This finding
does not reflect the real dispute that the Commissioner had to
consider. This finding is in any event not supported
by the
Commissioner’s own summary of the evidence.
[20]
The Commissioner did not set out the respect in which, according to
her, there was no nexus between the relief sought by the
applicant
and the evidence. The Commissioner summarised the evidence for the
applicant to include the following: the applicant
met the
requirements for promotion and for the post. The applicant did not
receive documents to show that he was evaluated; he
was not
considered for the post; the panel did not comply with the national
instruction; he was not given an opportunity to compete
for the post;
he would have been shortlisted, in comparison with the fourth
respondent, and that he stood a good chance at promotion;
and that
the applicant agreed that there was no assurance that the he would be
appointed.
[21]
The SAPS did not challenge the applicant’s evidence that the
applicant met the requirements for promotion and for the
post. It is
unclear how the Commissioner concluded that there was no nexus
between the evidence and the relief sought by the applicant
on the
face of such uncontested evidence. The conclusion is a fundamental
misdirection. No reasonable decision-maker could have
arrived at the
findings by the Commissioner in the light of such uncontested
evidence.
[22]
The applicant sought condonation for the late filing of his replying
affidavit. It is in the interests of justice that condonation
be
granted and it is so granted.
[23]
The record shows that the applicant notified the SAPS on 7 December
2005 that he intended to submit a grievance pursuant to
his
non-appointment. He requested documents for that purpose. The
internal grievance procedure took some five years before the
dispute
was referred to the second respondent.
[24]
I invited the parties to present submissions on whether it is
competent for the court to order a protective promotion with
benefits
retrospective to 1 December 2005. The SAPS did not make submissions,
nor did the SAPS (in its opposing affidavit) contend
that it would
not be competent for a court to grant the relief sought in paragraph
2 of the notice of motion.
[25]
I make the following order:
1.
The arbitration award in case PSSS240-11/12 and dated 7 June 2013 is
reviewed and set aside.
2.
The first respondent is ordered to promote the applicant to the rank
of Lt. Colonel (or its equivalent as at the date of this
order) and
that such promotion be made retrospective to 1 December 2005.
3.
The first respondent is ordered to furnish the applicant with all
financial benefits associated with the position of Lt Colonel
(or its
equivalent as at the date of this order) with effect from 1 December
2005.
4.
The cross-review by the first respondent is dismissed.
5.
The first respondent is ordered to pay the costs both in the main
review and in the cross-review.
O
Mooki
Judge
of the Labour Court (Acting)
APPEARANCES:
Applicant:
A. Naidoo
Instructed
by: R Ramdayal Attorneys
First
Respondent: P Valed
Instructed
by: The State Attorney
[1]
[2011]
12 BLLR 1176
(LC) at para [20]
[2]
[2010]
4 BLLR 428
(LC), at para 24
[3]
See
for example, Israel Sibiya and Safety and Security Sectoral
Bargaining Council and Others
(unreported:
Case No. D961/10, judgement by Boqwana AJ, dated 29 November 2012),
para 43