About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2015
>>
[2015] ZALCD 26
|
|
Nainaar v Department of Works, KZN and Others (D839/05) [2015] ZALCD 26 (19 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D839/05
DATE: 19 MAY 2015
Reportable
In the matter
between:
MICHAEL
NAINAAR
.............................................................................................................
Applicant
And
DEPARTMENT OF
WORKS,
KZN
...........................................................................
First
Respondent
COMMISSIONER B.
PILLEMER
.........................................................................
Second
Respondent
GENERAL PUBLIC
SERVICE
SECTORAL
.........................................................
Third
Respondent
BARGAINNG COUNCIL
Heard: 28
October 2014
Delivered: 19 May
2015
Summary:
Application for Review- Public servant- survey to identify newly
qualified graduate employees- survey to lead to translation
or
promotion of existing graduate employees to level 7 positions-
proviso: employees be acting in available level 7 positions-
difference between promotion and translations to the position acted
in- alleged unfair labour practice- reasonable conclusion reached
on
the facts put before the court- Section 145 discussed- Duties of
Commissioners discussed- Performance Management Development
System(‘PMDS’) in public service discussed.
JUDGMENT
Fouché AJ
Introduction
[1]
This matter was brought to this Court in accordance with Section 145
of the Labour Relation Act 66 of 1995 (“LRA”)
as a review
matter.
[2]
At the outset it is noted that the application for review was lodged
on 6 January 2006. The Commissioner’s award was handed
down on
24 November 2005, but came to the notice of the Applicant on 28
November 2005. The application for review was noted timely
as the due
date for the lodging of the application for review was 6 January
2005.
Relief
sought
[3]
The relief sought in this matter on behalf of the Applicant is that
the arbitration award issued by the Second Respondent, Commissioner
Pillemer under Case no PSGA 1241-04/05, on 24 November 2005, in the
arbitration proceedings between the Applicant and the First
Respondent, be reviewed and set aside in accordance with Section 145
of the Labour Relations Act. Furthermore, that the Third Respondent
be ordered to instruct a Senior Commissioner to hear this matter.
Lastly, costs to be paid jointly and severally by any of the
Respondent who opposes the application.
Facts
[4]
The Applicant is an employee of the First Respondent. The Applicant
was employed since March 2000 as a Senior Administrative
Clerk at
level 5
[1]
. He submitted that he
was not promoted between the periods 2000 to 2009 which resulted in
an unfair discrimination. This period
where the Applicant received no
promotion is thus approximately 9 years.
[5]
During 1999, the First Respondent conducted a skills survey (skills
audit) to determine the skills level in the Department
[2]
.
The Skills audit classified staff members with University Degrees as
RQV13/level 5 and higher. The Applicant obtained a University
degree
in 1999 and was thus RQV 13 compliant since 1999.
[6]
On 15 January 2001, the First Respondent sent a letter to all the
Regional Directors and Directorates with the instruction to
partake
in a survey for officials with RVC13 qualifications/Level 5 and
higher. The RVQ 13 survey reflects the newly acquired tertiary
qualifications of employees. It reads as follows:
‘
1.
Kindly furnish the following information in respect of the officials
who have Diplomas/certificates with RVQ 13/level 5 value
and who have
not been translated to the officer cadre:
1.1
Name
1.2
Rank
1.3
Qualifications
1.4
Date obtained
2.
Mr
M M Hlongwa is the co-ordinator of the required information. This
survey must not be construed as an effort of considering the
said
officials for translation in ranks.’
[3]
[7]
A second letter, dealing with the RVQ13 process, dated 18 May 2001,
followed, which reads as follows:-
‘
SURVEY
OF THE OFFICIALS WITH RVQ13/NQF LEVEL 5 QUALIFICATON AND OTHER:
1.
…
2.
It is not clear from your submission
whether there are any employees already executing work in the
identified vacancies.
3.
however it is strongly suggested that a
recommendation should be submitted considering the merits of each
case to enable this office
to do justice to all
transaction/appointments.
4.
should it happen that there are no cases
that comply with paragraph 2 above, then such vacant posts should be
advertised to ensure
fair competition.
HEAD
WORKS’
[4]
[8]
The RVQ 13 information had to be sent to the First Respondent.
Subsequent to the receipt of the information of the RVQ13 survey,
First Respondent sent a letter dated 1 March 2001 to all Regional
Directors and Directorates, requesting:
‘
Further
to the request dated 15.01.2001, please indicate whether there are
any vacant administrative officer post in your region
that could be
used to accommodate these officers.’
[5]
[9]
The RVQ 13 translation was aimed at employees already executing work
in the identified vacancies. The letter dated 18 May 2001
reads as
follows:
‘
2.
It is not clear from your submission whether there are any employees
already executing work in the identified vacancies.
3.
However, it is strongly suggested that a
recommendation should be submitted considering the merits of each
case to enable this office
to do justice to all the
translations/appointments.
4.
Should
it happen that there are no cases that comply with paragraph 2 above,
then such vacant posts should be advertised to ensure
fair
competition.’
[6]
Submissions of
the parties
[10]
Applicant submitted that he obtained his degree and the RVQ 13 skills
audit status in 1999. The RQV 13 status flowed from the
Respondents
skills audit survey which posed the opportunity for a RQV 13 employee
to qualify for a level 7 post
[7]
.
It was submitted in Court that the skills audit process consisted of
three steps, firstly, the classification of RVQ13 employees,
secondly, determining the availability of vacant positions in the
Department and thirdly, the identification of employees qualifying
for the translation to a higher post level
[8]
.
The advertising of the position is according to the Applicant not a
prerequisite for the translation or promotion of an employee
[9]
.
[11]
The Applicant referred this Court to the 1999 Skills audit survey(
the “RVQ 13 survey”). He submitted that the
fifth person
on the skills audit document was promoted and translated to a higher
post level in 1999. The third and fourth persons
on the skills audit
survey were translated and promoted without the prior advertising of
the position
[10]
. The seventh
to the eleventh persons were promoted and translated to a higher post
level in 2001 whilst employees 10 and 11 received
their respective
degrees after the Applicant, but was promoted and translated to a
higher post level in 2001. The fourth employee
was translated to a
higher post without receiving a higher salary.
[12]
The Respondent submitted that not all of the employees recorded in
the skills audit survey, were translated and promoted to
higher post
levels. The purpose of the skills audit was to ensure that RVQ 13
employees would be able to apply for positions on
level 7 and not to
translate employees into positions they have no experience in
[11]
.
[13]
In rebuttal the Applicant relied on an unfair labour practice. The
submission was that the Respondent unfairly promoted, demoted
or
probated, or trained an employee or paid the benefits of another
employee, at the exclusion of the Applicant. The Applicant
testified
that he was employed since 2000 in three departments, firstly,
contract management, then internal control and lastly,
finance. The
Applicant stated that he applied for vacant level 7 positions, but
was unsuccessful
[12]
.
[14]
The Applicant submitted that the Respondent erred to timely promote
the Applicant, subsequent to the RVQ13 skills audit survey.
The
Applicant stated that the Respondent should have promoted the
Applicant to a level 7 position in 2000, following the completion
of
his degree. The Applicant submitted that the failure occurred in 2000
and that this Court should order the Respondent to promote
the
Applicant to a level 7position retrospectively to 2000.
[15]
The Respondent submitted that it would be incorrect to promote the
Applicant to a level 7 position from 2000 as Mr Moodley
was
translated and promoted to that position in December 1999. The latter
position was not advertised as the Respondent applied
the skills
audit survey to promote the candidate to level 7.
[16]
The Applicant submitted that the Respondent applied the RVQ 13
promotion requirements incorrectly. The error was not in the
identification of the RVQ13 qualifying employees, but in the
selection process for suitable employees and to determine the
quantity
and quality of employees up for promotion. Applicant
submitted that the mere fact that another employee held the same type
of position
for a period exceeding that of the Applicant, should not
benefit such other employee over the Applicant.
[17]
The Applicant submitted that the third and fourth person on the
skills survey list was promoted to level seven positions in
1998.
Person seven to eleven on the Skills Audit Survey list were promoted
at the expense of the Applicant. Persons three and four
on the list
were translated into a position but were not promoted.
[18]
The Applicant submitted that he applied for advertised positions as
and when they came up, but was unsuccessful in securing
a higher
position.
[19]
The First Respondent submitted that the RVQ process was an
information exercise in the form of a Skills Audit survey aimed
to
absorb employees with RQV13 qualifications into level 7 posts
[13]
.
The determining factor of this process entailed that when two RVQ13
qualified candidates vying to be absorbed into the same level
7
position is compared, the candidate with the more experience in the
vacant position is to be preferred
[14]
.
[20]
The First Respondent admitted that the Applicant had a RVQ13
qualification
[15]
. First
Respondent submitted that another employee was preferred over the
Applicant as that employee had more experience in the
relevant
position and obtained the RVQ 13 qualification a longer period prior
to the Applicant
[16]
.
[21]
First Respondent submitted that the skills audit survey conducted by
the First Respondent was not a placement tool, but an
information
exercise
[17]
. First Respondent
submitted that the absorption process and the decision which
employees were to be absorbed into level 7, was
reasonable, lawful
and within the parameters of the scope of the First Respondent’s
approach. The Applicant stated that the
process was unfair as he
should have received a translation to a level 7 position in 2000.
[22]
The First Respondent submitted that the First Respondent has the
discretion to choose the employee best suited for the available
level
7 position. It does not follow that an employee acting in a vacant
position will automatically be absorbed into that position.
Evaluation of the
submission of the parties
[23]
A promotion can be defined in terms of general systems used by most
employers through which employees may progress or advance
to another
rank or level in the organisation. In the Government sector, the
system to manage performance is called Performance
Management and
Development system (“PMDS”). Employees are evaluated on a
quarterly basis, where the individual performance
is measured against
the Key Responsibility Areas (“the KRA’s”) and the
Generic assessment factor (“the
GAF”) set for the
performance of the individual employee.
[24]
Item 2(1) (b) of Schedule to the
Labour Relations Act, 66 of
1995
(“the LRA”) states that unfair conduct relating to
the promotion of an employee can constitute an unfair labour
practice.
In
Public
Servants Association v Northern Cape Provincial Administration
[18]
“promotion” is defined as:
‘…
as
the employee had applied for a post, duly advertised in a newspaper,
such application, should it be successful, could not be
a promotion.
Although the appointment would have been made within the same
department, it would not constitute a promotion as a
promotion is
usually an internal matter…’
[25]
In
Mashegoane
and Another v University of the North
[19]
a promotion was defined as an elevation or an appointment to a
position which carries greater authority and status, than the
employee’s
current position. It reads as follows:
‘
Had
Mashegoane been appointed, his salary would have remained the same
but he would have received a Dean’s allowance and would
have
had a car at his disposal…He would further have
responsibilities relating to the management and control of the
Faculty.’
[26]
In
Mulder
and Telkom SA Ltd
[20]
it was held that the upgrading to a higher position without a change
in the job content or responsibilities does not constitute
a
promotion
[21]
.
[27]
Two criteria are used to determinate if a promotion occurred.
Firstly, if there is an existing employment relationship between
the
Applicant and the Respondent and secondly, once the
nexus
between the employee and the employer exists, a comparison of the
employer’s current job is compared to the job applied for.
The
author Garber
[22]
opines that
in general the following factors may indicate that the employee
received a promotion, namely:
(a)
Differences in remuneration levels
(b)
Differences in fringe benefits
(c)
Differences in status
(d)
Differences in level of responsibility
(e)
Differences in the level of authority and power
(f)
Differences in job security.
[28]
To reach a finding that a promotion was due to the Applicant, the
Applicant had to prove the existing employment relationship
between
the Applicant and the Respondent, and the difference in substance
between the level 5 position he held and the level 7
position he
aspired following the RVQ13 skills audit. Once it is clear that the
required
nexus
was in place, the substantive and procedural
unfairness relating to the promotion must be addressed.
[29]
The employer must follow the formal procedure laid down in
legislation, employment equity plans
[23]
,
collective agreements, established practice
[24]
,
or directives unless “good and sufficient reason” for the
deviation
[25]
can be shown.
The procedural aspect of promotions should be measured against the
test of fairness.
[30]
Prof Rycroft in ‘Rethinking the Requirements for a Fair
Appointment or Promotion’ extrapolates the fair requirements
for promotions
[26]
and opines
that a promotion is fair if it meets the following criteria;
‘
(a)
the advertisement must contain accurate information about both
minimum requirements and preferred experience/competencies, and
these
must be necessary for the job.
(b)
the assessment of the candidates at the interview must relate only to
the competencies required for the job.
(c)
The necessary qualifications or inherent
requirements for the job may not be changed after the advertisement.
(d)
The successful candidate should ordinarily be the
person who not only meets the minimum requirements, but who scores
highest in
the assessment.
(e)
If there is deviation from the highest scored
candidate, there must be a sound reason, either operationally or for
employment equity,
to justify this.
(f)
If there is deviation from the highest scored
candidate, the successful candidate must possess the competencies
needed for the job.
(g)
The employer must be able to articulate the
reason(s) why a particular candidate is unsuccessful.’
[31]
In
De
Nysschen v General Public Service Sectoral Bargaining Council and
Others,
[27]
the
Court followed the fair promotion test. That Applicant had been
acting in an upgraded post for several years and applied for
appointment when it was formally upgraded and advertised. The
selection committee recommended the Applicant’s appointment
and
that another Applicant, Mr M, be appointed to another post for which
that candidate was better qualified. Months later a further
'final'
report was issued which read that Mr M was suitable for all three
posts advertised, including the one which the applicant
had applied
for. The MEC accordingly appointed Mr M to the post for which the
Applicant had been recommended. The post for which
Mr M had been
recommended remained unfilled and had to be re-advertised.
[32]
In
De Nysschen
infra
, the selection committee
recommended the Applicant for the filling of the upgraded position
she acted in for several years. The
matter was brought to Court as an
unfair labour practice. Mr M, the second candidate was recommended to
fill another position.
The Department received these recommendations
but decided that Mr M was the stronger candidate and recommended Mr M
for the upgraded
position. On review, the Labour Court held there was
no compelling evidence that Mr M was the stronger candidate but that
the appointment
was the result of arbitrary reasoning which was
unreasonable and unfair. Procedure also had not been followed when
the Department
deviated from the recommendation of the selection
committee. The Court held that the discretion of the MEC was not an
unlimited
one but had to be exercised in a way which did not result
in an unfair labour practice. That Court held that there would have
been
no prejudice to the Department or Mr M if the MEC had followed
the selection committee's recommendations. The Court held that a
de
novo
hearing would not change the inherent unfairness of the
failure to retain the Applicant in her post. The Court ordered the
Applicant
to be appointed and remunerated as if she had been
successful in her application.
[33]
It is trite law that there are three basic requirements for a fair
appointment or promotion, firstly, the procedure must have
been fair,
secondly, there must have been no discrimination, and thirdly, the
decision must not have been grossly unreasonable.
Arries
v CCMA and Another
[28]
,
interrogates the third basic requirement set for a fair appointment,
being that the decision must not have been grossly unreasonable
[29]
.
That Court held that third requirement requires determination
‘whether the third respondent’s discretion was exercised
capriciously or for insubstantial reasons or based on any wrong
principle or in a biased manner’
[30]
.
Reliance was placed on the
ratio
decidendi
of
Ndlovu
v Commissioner for Conciliation, Mediation and Arbitration and
Others
[31]
at
paras 11-12, where Wallis AJ
said:
'11.
In my view, the questions which the commissioner asked in the first
paragraph of that quotation were wholly justifiable questions
in
relation to a dispute over a matter of promotion. It can never
suffice in relation to any such question for the complainant
to say
that he or she is qualified by
experience,
ability and technical qualifications such as university degrees and
the like, for the post. That is merely the first
hurdle. Obviously a
person who is not so qualified cannot complain if they are not
appointed’.
’
12.
The next hurdle is of equal if not greater importance. It is to show
that the decision to appoint someone else to the post in
preference
to the complainant
C
was unfair. That will almost
invariably involve comparing the qualities of two candidates.
Provided the decision by the employer
to appoint one in preference to
the other is rational it seems to me that no question of unfairness
can arise.'
[34]
The First Respondent submitted before this Court that employees have
no right to promotion and that the employer has the right
to appoint
or promote suitably qualified employees
[32]
.
An objective standard must be applied by the employer in choosing
fairly between two employees for the same post. Failure of the
employer to apply the objective standard may result in arbitrary,
capricious or inconsistent conduct, whether intended or negligent.
The process applied should culminate in the employer preferring one
employee above another
[33]
.
[35]
The First Respondent indeed submitted that there is sufficient
evidence to reflect that the employer preferred another employee
over
the Applicant. Both employees had RVQ13 qualifications, the
other employee was promoted as he had more experience in
the relevant
post and had obtained the RVQ13 qualification prior to the
Applicant
[34]
.
[36]
The First Respondent concluded that appointing of another employee
above the Applicant, was not arbitrary, capricious or inconsistent
conduct. The Applicant submitted
the
skills audit process consisted of the classification of RVQ13
employees, identifying vacant posts in the Department and the
identification of employees qualifying for the translation to a
higher post level which constituted the objective standard used
during the translation and in some cases the promotion
[35]
.
It is trite law that the employee could object to the promotion if
the employer’s discretion to promote another employee
was
capricious, or for insubstantial reasons or based on the wrong
principle or biased manner
[36]
.
[37]
The Applicant submitted that the advertising of the level 7 positions
was not a prerequisite for the translation or promotion
of an
employee
[37]
. This follows as
persons 3, 4, 7 to 11 on the RVQ13 survey was translated without
advertised posts. The Applicant’s perception
is that the First
Respondent was unfair in not promoting him. The First Respondent
denied that it mounted to unfairness.
In
SA
Municipal Workers Union on behalf of Damon v Cape Metropolitan
Council
[38]
it was stated that:-
‘
The
onus is on the union to make a case of Unfair Labour Practice to do
so, it needs to examine the reasons why its member was not
appointed
and identify defective reasoning on the part of the appointing
authority. Unless the appointing authority were shown
to have not
applied its mind in the selection of the selection of the successful
candidate, the CCMA may not interfere with the
prerogative of the
employer to appoint whom it considers to be the best candidate. The
process of selection inevitably results
in a candidate being
appointed and the unsuccessful candidate(s) being disappointed. This
is not unfair.’
[38]
In
Goliath
v Medscheme (Pty) Ltd
[39]
the Industrial Court, without citing authority dealt as follows with
the test to measure substantive unfairness in an appointment:
'Inevitably, in
evaluating various potential candidates for a certain position, the
management of an organization must exercise
a discretion and form an
impression of those candidates. Unavoidably this process is not a
mechanical or a mathematical one where
a given result automatically
and objectively flows from the available pieces of information. It is
quite possible that the assessment
made of the candidates and the
resultant appointment will not always be the correct one. However, in
the absence of gross unreasonableness
which leads the court to draw
an inference of
mala fides
, this court should be hesitant to
interfere with the exercise of management's discretion.'
And
at 614 G-F:
'…It is not
unfair or unreasonable for an employer to appoint a person with a
view not only to immediate needs, but also
with a view to future
development. To hold otherwise would place unreasonable restraints
upon an employer's prerogative to manage
its business. In the absence
of tangible evidence demonstrating that the employer was
mala fide
in its decision, this court will not readily interfere with the
exercise of that prerogative.'
[39]
In
Arries
v Commission for Conciliation, Mediation and Arbitration and
Others
[40]
,
the Court held that if it is proved that the employer exercised the
discretion capriciously, for insubstantial reasons, or based
on any
wrong principle, or in a biased manner, the employee could succeed in
having it interfered with. A ‘capricious act’
denotes the
arbitrary making of a decision in the absence of reason or the
absence of justifiable reason. In juxtaposition, this
Court assessed
the discretion exercised by the employer against a test of fairness.
[40]
In the Public Service there are set requirements to be met if a
selection committee wishes to recommend a candidate, other
than the
highest scoring candidate for a position. The managerial prerogative
in justifying the deviation from the highest scoring
candidates on
the grounds of operational requirements or employment equity is
procedurally and substantially limited. The managerial
prerogative to
select another candidate should be respected unless bad faith or
improper motive, such as discrimination, is present
[41]
.
Any non-rational ground of deviation must render the decision unfair
to the unsuccessful higher scoring candidates
[42]
.
The
test for review
[41]
The grounds for review set out in Section 145 of the Labour Relations
Act are:-
‘
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to
the
Labour Court for an order setting aside the arbitration award-
(a) within six weeks
of the date that the award was served on the applicant
(2) a defect
referred to in subsection (1) means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner’s powers; or
(b)
that an award had been improperly obtained’.
[42]
In
Carephone
(Pty) Ltd v Marcus NO and Others
[43]
,
which was decided before the advent of PAJA, the Court enunciated the
test for Section 145 of the Labour Court reviews as:
‘
.....is
there a rational objective basis for justifying the connection made
by the administrative decision maker between the material
property
available to him and the conclusion he or she eventually arrived at?’
[43]
The Applicant before this Court submitted that this Court must apply
Rustenburg
Platinum Mines Ltd (Rustenburg section) v Commissioner for
Conciliation, Mediation & Arbitration and Others
[44]
,
where the Labour Appeal Court stated that Section 33 of the
Constitution extended the scope of review to introduce a requirement
of rationality in the outcome of decisions. Section 33 of the
Constitution states that:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair’.
[44]
The Applicant before this Court submitted further that an objective
inquiry must take place during the arbitration proceedings
and should
be reflected in the Arbitrator’s award
[45]
.
The award must be rationally connected to the information before the
arbitrator and the reasons entered on the record. It must
be
established if the arbitrator properly exercised the powers given to
him in compliance with
Section 3
of the
Labour Relations Act and
the
Constitution. The rational objective test set out in
Carephone
(Pty) Ltd v Marcus NO and Others
[46]
infra
,
must thus be applied.
[45]
The Respondent submitted that this Court must not apply
Carephone
(Pty) Ltd v Marcus NO and Others
[47]
,
nor
Rustenburg
Platinum Mines Ltd (Rustenburg section) v Commissioner for
Conciliation, Mediation & Arbitration and Others
[48]
,
but
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[49]
In
Sidumo
,
Navsa AJ held that a Commissioner conducting a CCMA arbitration
performs an administrative function and the Promotion of
Administrative
Justice Act does not apply to arbitration matters in
terms of the
Labour Relations Act. The
majority of the Constitutional
Court in this matter held that
Section 145
of the LRA must be
“suffused” with the test of reasonableness in Section 33
of the Constitution and accordingly the
essential question to ask in
determining if the arbitration award should be reviewed is the
following:
‘
Is
the award one that a reasonable decision maker could not reach?’
[46]
In paragraph 110 of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[50]
Navsa
AJ
held:-
‘
[110]
To summarise,
Carephone
held
that section 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision
should be
justifiable in relation to the reasons given for it. The better
approach is that section 145 is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato Star
:
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair.’
[47]
In
Rustenburg
Platinum Mines Ltd(Rustenburg Section)v Commission for Conciliation,
Mediation and Arbitration and Others
[51]
Cameron JA held as follows:
'The criterion of
fairness denotes a range of possible responses, all of which could
properly be described as fair. The use of 'fairness'
in everyday
language reflects this. We may describe a decision as 'very fair'
(when we mean that it was generous to the offender);
or 'more than
fair' (when we mean that it was lenient); or we may say that it was
'tough, but fair', or even 'severe, but fair'
(meaning that while
one's
own decisional response might have been
different, it is not possible to brand the actual response unfair).It
is in this latter
category, particularly, that CCMA commissioners
must exercise great caution in evaluating decisions to dismiss. The
mere fact that
a CCMA commissioner may have imposed a different
sanction does not justify concluding that the sanction was unfair.'
[48]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental affairs and
Tourism and Others
[52]
O Reagan J of the Constitutional Court held, that what constitutes a
reasonable decision depends on the circumstances of each case.
Similarly, the determination of the fairness of the procedure depends
on the circumstances of each case. It enumerates the determination
factors as follows:-
‘
Factors
relevant to determining whether a decision is reasonable or not will
include the nature of the decision, the identity and
expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature
of the competing interests
involved and the impact of the decision on the lives and well-being
of those affected’.
[49]
In
Palaborwa
Mining Co Ltd v Cheetham and Others
[53]
the LAC held that:-
'
Sidumo
enjoins
a court to remind itself that the task to determine the fairness or
otherwise of a dismissal falls primarily within the
domain of the
commissioner. This was the legislative intent and as much as
decisions of different commissioners may lead to different
results,
it is unfortunately a situation which has to be endured with
fortitude despite the uncertainty it may create.'
[50]
In
Rustenburg
Platinum Mines Ltd(Rustenburg Section)v Commission for Conciliation,
Mediation and Arbitration and Others
[54]
Cameron JA held that, provided the employer's decision fell within a
notional range of fair sanctions, the commissioner should
defer
thereto.
Cameron
JA went on to summarize the legal position as follows:
'Commissioners
must exercise caution when determining whether a workplace sanction
imposed by an employer is fair. There must be
a measure of deference
to the employer's sanction, because under the LRA it is primarily the
function of the employer to decide
on the proper sanction.’
[55]
'In
determining whether a dismissal is fair, a commissioner need not be
persuaded that dismissal is
the
only
fair
sanction. The statute requires only that the employer establish that
it is
a
fair
sanction. The fact that the commissioner may think that a different
sanction would also be fair does not justify setting aside
the
employer's sanction.'
[56]
[51]
In
Fidelity
Cash Management Service v CCMA & others
[57]
Zondo
JP set out what is required of commissioners following
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[58]
:
‘
[94]
In terms of the
Sidumo
judgment,
the commissioner must -
(a)
'take into account the totality of
circumstances' (para 78);
(b)
'consider the importance of the rule
that had been breached' (para 78);
(c)
'c onsider the reason the employer
imposed the sanction of dismissal, as he or she must take into
account the basis of the employee's
challenge to the dismissal' (para
78);
(d)
consider 'the harm caused by the
employee's conduct' (para 78);
(e)
consider 'whether additional training
and instruction may result in the employee not repeating the
misconduct';
(f)
consider 'the effect of dismissal on
the employee' (para 78);
(g)
consider the employee's service record.
The
Constitutional Court emphasized that this is not an exhaustive list…
‘
‘
[95]
Once the commissioner has considered all the above factors and others
not mentioned herein, he or she would then have to answer
the
question whether dismissal was in all of the circumstances a fair
sanction in such a case. In answering that question he or
she would
have to use his or her own sense of fairness. That the commissioner
is required to use his or her own sense of justice
or fairness to
decide the fairness or otherwise of dismissal does not mean that he
or she is at liberty to act arbitrarily or capriciously
or to be mala
fide. He or she is required to make a decision or finding that is
reasonable.’
[52]
The Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[59]
for
the reasons given by the Labour Appeal Court in
Fidelity
Cash Management Service v CCMA and Others
[60]
have
held that PAJA does not apply in the review of awards made pursuant
to statutorily compulsory arbitration processes.
[53]
The Applicant referred this Court to
Herholdt
v Nedbank Ltd
[61]
which was overturned by the LAC. In that matter the Labour Court had
held that the test applicable to Section 145 LRA reviews should
recognize that a dialectical and substantive reasonableness is
intrinsically interlinked and that latent process irregularities
could carry the inherent risk of causing a possible unreasonable
outcome. The Applicant insisted that this Court must scrutinize
the
Commissioner’s reasons to determine whether a latent
irregularity occurred, being an irregularity in the mind of the
Commissioner, which is only ascertainable from the Commissioner’s
reasons. The Applicant referred this Court to page 1802
where AJA
Murphy in paragraph 39 stated:-
‘
There
is no requirement that the commissioner must have deprived the
aggrieved party of a fair trial by misconceiving the whole
nature of
the inquiry. The threshold for interference is lower than that; it
being sufficient that the commissioner has failed
to apply his mind
to certain of the material facts or issues before him, with such
having potential for prejudice and the possibility
that the result
may have been different’.
[54]
It is clear that the Applicant referred to the incorrect test. The
Labour Appeal Court in
Herholdt
v Nedbank Ltd (Cosatu as amicus curiae)
[62]
overruled
the Court
a
quo’s
finding. It held that:-
‘
[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 s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by s 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 their effect is to render the
outcome unreasonable.’
[55]
In
Kievits
Kroon Country Estates (Pty) Ltd v Mmoledi and Others
[63]
the Labour Appeal Court held:-
‘
And
if the commissioner determines the dispute in accordance with a
fair procedure, a review court will not interfere with
the decision
unless it is one that could not have been reasonably made on the
available material.’
[56]
In
Goldfields
Mining SA(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others
[64]
,
the Labour Appeal Court held:-
‘
[16]
In short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable to justify the decisions he or she arrived
at’
[65]
.
And
‘
[18]
In a review conducted under s 145(2)
(a)
(ii)
of the LRA, the reviewing court is not required to take into account
every factor individually, consider how the arbitrator
treated and
dealt with each of those factors and then determine whether a failure
by the arbitrator to deal with one or some of
the factors amounts to
process related irregularity sufficient to set aside the award. This
piecemeal approach of dealing with
the arbitrator's award is improper
as the reviewing court must necessarily consider the totality of the
evidence and then decide
whether the decision made by the arbitrator
is one that a reasonable decision maker could make.’
[66]
[57]
In
Nampack
Corrugated Wadeville v Khoza
[67]
,
the Labour Appeal Court in 1999 held that:
‘
...this
discretion must be exercised fairly. A court should, therefore, not
lightly interfere with the sanction imposed by the employer
unless
the employer acted unfairly in imposing the sanction. The question is
not whether the court would have imposed the sanction
imposed by the
employer, but whether in the circumstances of the case the sanction
was reasonable..’.
[58]
I am accordingly satisfied that the Commissioner Pillemer (the Second
Respondent) considered all relevant factors in this matter.
The
decision made is one that a reasonable decision-maker would reach.
Evaluation of the
award
[59]
The second Respondent in analysing the evidence reached the
conclusion that:
‘
The
Applicant did not seem to understand the processes and procedures. He
did not understand the criteria used in the survey,
which was a
short term attempt to remedy the situation where the employees were
already acting in a position, to make that
post permanent. The
Applicant plainly did not meet the criteria. He was not already
acting in a level 7 post’.
[68]
[60]
The second Respondent in evaluating the evidence, recorded that MM
Hlongwa, the survey co-ordinator of the First Respondent,
testified
that three criteria were used by the First respondent during the
survey being that-
‘
1.
The applicant had to be in possession of the RVQ13;
2. There had to be a
vacant post
3.
The applicant must already be performing duties of the higher
post’.
[69]
[61]
Mr Hlongwa testified that the Applicant did not meet the above
criteria set for the Level 7 positions. Mr Moodley who was more
experienced, was translated to the level 7 position
[70]
.
The Applicant was not already performing the duties of the higher
level 7 post. The Respondent testified that the objective standard
applied reflected that Mr Moodley was more experienced than the
Applicant
[71]
.
[62]
The Applicant did not request the Human Resource division to conduct
a job evaluation to determine the specifications of the
position he
held at the time of the translation request. The Applicant merely
relied on the skills survey as the tool for translation
to a higher
level 7 position. The Arbitrator recorded that the Applicant
testified ‘he expected to be promoted the same way
as other
employees flowing from the survey’
[72]
.
[63]
The arbitrator found that the survey was a short term attempt to
remedy the situation where employees were already acting in
higher
positions. The Applicant at no stage held an acting appointment in a
level 7 position. Employees, who were translated to
level 7
positions, were already acting in these level 7 positions. Applicant
was not acting in a level 7 position and did not meet
the criteria
set out in the survey
[73]
.
[64]
It is clear that the arbitrator considered the principal issue before
him; evaluated the facts presented at the hearing and
came to a
reasonable conclusion. I accordingly hold that the Application for
review is dismissed.
Costs
[65]
The Applicant requested no order as to costs. The First Respondent
submitted that costs should follow the order.
[66]
I have considered the requests of the parties. The matter before the
Court is not a typical matter where the Court will order
costs.
Order
[67] In the result
therefore, it is ordered as follows:-
1. The Applicant’s
application for review in terms of Section 145 is dismissed;
2.
No order as to costs
Fouché
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCE
For the
applicant: E. Nompefu (NUPSAW)
For
the respondent: N.G. Winfred
Instructed
by: State Attorney
[1]
See
the Award paginated page 65.
[2]
Page
83 of the paginated bundle. See pages 84-86 of the paginated bundle
for the Skills Audit is survey.
[3]
See
Annexure “C” paginated bundle page 91.
[4]
Paginated
Page 84.
[5]
See
Annexure “B” paginated bundle page 92.
[6]
See
Annexure E paginated page 84.
[7]
Respondent’s
Opposing Affidavit para 4 paginated page 32.
[8]
Respondent’s
Opposing Affidavit p
ages
85-86.
[9]
See
para 4 Annexure “C” on paginated page 83.
[10]
See
Annexure E, paginated page 84.
[11]
See
para 12 of the First Respondent’s Opposing affidavit
paginated page 36.
[12]
Award
paginated page 66.
[13]
See
para 7 of the Respondent’s Opposing Affidavit.
[14]
See
para 7.2 of the Respondent’s Opposing Affidavit.
[15]
See
para 19 of the F
irst
Respondent’s Opposing Affidavit.
[16]
See
para 19 of the F
irst
Respondent’s Opposing Affidavit.
[17]
See
para 23 of the F
irst
Respondent’s Opposing Affidavit.
[18]
1997
18
ILJ
1137 CCMA 1141 B-D.
[19]
[2007] ZALC 53
;
[1998]
1 BLLR 73
(LC) at 77G-77I.
[20]
(2002)
23
ILJ
214 (CCMA).
[21]
See
also:
Mzimni
and Another v Municipality of Umtata
(1998) 7 BLLR 780
(Tk) at 784 G-H;
Vereniging
van Staatsamptenare on behalf of Badenhorst v Department van
Justisie
(1999) 20
ILJ
253 (CCMA). See also: Du Toit, Bosch, Woolfrey, Godfrey and Rossouw
‘Labour Relations Law- a comprehensive guide (2003)
463; C.
Garbers ‘Promotions: keeping abreast with ambition- An
overview of the current law on promotion of employees’
Contemporary Labour Law Vol 9 No 3 October 1999 p 21-30 at 22.
[22]
Garber
23-23.
[23]
Meyer
v South African Police Service
(2002)
23
ILJ
974 (BCA). See also:
Crotz
v Worcester Transitional Local Council National
[2001] 8 BALR 824 (CCMA);
SA
Transport and Allied Workers Union and Metrorail
Services
(2002) 23
ILJ
2389 (ARB).
[24]
See:
SA
Transport and Allied Workers Union on behalf of Fourie and Another v
Transnet Ltd (
2002)
23
ILJ
1117 (ARB).
[25]
See:
Page
v SA Police Service
(2002) 23
ILJ
111 (ARB) at 115-116.
[26]
‘
Rethinking
the Requirements for a Fair Appointment or Promotion: Arries v CCMA
and Others (2006) 27
ILJ
2324 (LC)’
(2007)
ILJ
2189-2193 at 2192
[27]
(2007)
28
ILJ
375 (LC).
[28]
(2006)
27
ILJ
2324 (LC).
[29]
Para
[16] on page
2330.
[30]
Para
[48] on page 2336.
[31]
(2000)
21
ILJ
1653(LC.)
[32]
Port
Elizabeth Municipality v Municipality v Minister of Labour and
Another
1975
(4) SA 278
(E) at 282 G. See also: Du Toit, Bosch, Woolfrey, Godfrey
and Rossouw: Labour Relations Law-A Comprehensive Guide (2003) 459.
[33]
See
Garbers
1999 CLL 23.
See also:
NEHAWU
on behalf of Thomas v Department of Justice
(2001) 22
ILJ
306B (BCA) where it was held that not appointing the highest scoring
candidate in order to improve the department’s
representativeness
was not an unfair labour practice as it was
neither
ad
hoc
,
nor haphazard.
[34]
Para
19 of the First Respondent’s Opposing Affidavit, paginated
page 39.
[35]
Respondent’s
Opposing Affidavit p
ages
85-86.
[36]
See:
para [17 ] Arries v CCMA and Others (2006) 27
ILJ
2324 (LC).
[37]
See
para 4 Annexure “C” on paginated page 83.
[38]
(
1999)20
ILJ
714 (CCMA).
[39]
[1996]
5 BLLR 603
(IC) at 609-610.
[40]
(2006)
27
ILJ
2324 (LC) para 17.
[41]
Provi
ncial
Administration Western Cape v Bikwani and Others
(2002)
23
ILJ
761 (LC).
[42]
See:
Woolworths
(Pty) Ltd v Whitehead
(2000)
21
ILJ
571 (LAC).
[43]
1999
(3) SA 304
LAC; (1998) 19
ILJ
1425 LAC; 1998 11 BLLR 1093 (LAC).
[44]
2007
(1) SA 576
(SCA);(2006) 27
ILJ
2076 (SCA); [2006]11 BLLR 1021 (SCA).
[45]
See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at paragraph 25.
[46]
1999
(3) SA 304
(LAC); (1998) 19 ILJ 1425 (LAC); [1998] 11 BLLR 1093
(LAC).
[47]
1999
(3) SA 304
(LAC); (1998)19 ILJ 1425 (LAC); [1998] 11 BLLR 1093
(LAC).
[48]
2007
(1) SA 576
(SCA); (2006) 27 ILJ 2076 (SCA); [2006] 11 BLLR 1021
(SCA).
[49]
2008
(2) SA 24
(CC); (2007) 28
ILJ
2405 (CC).
[50]
2008
(2) SA 24
(CC); 2007 28
ILJ
2405 (CC).
[51]
2006
ILJ 2076;
2007 (1) SA 576
SCA.
[52]
2004
(4) SA 491
para 45-E 513D-E.
[53]
(2008)
29
ILJ
306 (LAC).
[54]
2008
(2) SA 24
(CC); 2007 28
ILJ
2405 (CC).
[55]
Para
48(d).
[56]
Para
48(e).
[57]
(2008)
29
ILJ
964
(LAC).
[58]
2008
(2) SA 24
(CC); 2007 28
ILJ
2405 (CC).
[59]
(2007)
28
ILJ
2405 (CC) at para [104].
[60]
(2008)
29
ILJ
964 (LAC) at paras [92] and [94].
[61]
(2012)
33
ILJ
1789 (LAC).
[62]
2013
(6) SA 224
(SCA) para 25. See also:
Kieviets
Kroon Country Estate (Pty) Ltd v Mmoledi and Others
2014 (1) SA 585
(SCA) para 20;
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and Others
(2014) 35
ILJ
943 (LAC para 16-22.
[63]
2014
(1) SA 585
(SCA) para 20.
[64]
(
2014)
35
ILJ
943 (LAC).
[65]
Page
949 D-E.
[66]
Page
949 E-G.
[67]
(1999)
20
ILJ
578 (LAC);
[1999] 2 BLLR 108
(LAC) at para 33.
[68]
Award,
paginated
page 70.
[69]
Award,
paginated page 68.
[70]
Award,
paginated page 69.
[71]
Award
paginated page 69.
[72]
Award
paginated pages 68-69.
[73]
Award
paginated page 70.