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[2015] ZALCD 50
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South African Police Service v Safety And Security Sectoral Bargaining Council and Others (D773/2013) [2015] ZALCD 50 (27 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no:
D773/2013
DATE: 27 AUGUST
2015
Not
Reportable
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICE
.................................................................................
Applicant
And
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
COMMISSIONER
A DEYSEL N
O
.......................................................................
Second
Respondent
ROBERT
ANTON
EVERSON
..................................................................................
Third
Respondent
Heard:
26 August 2015
Delivered:
27 August 2015
Summary:
review. Application dismissed
Judgment
GUSH
J
[1]
This is an application to review and set
aside the award of the 2
nd
respondent in which award the 2
nd
respondent found that the applicants failure to promote the 3
rd
respondent constituted an unfair Labour practice and ordered the
applicant to place the 3
rd
respondent in the position he would have been had he been promoted
and pay the 3
rd
respondent the difference between his salary actually earned and the
salary he would have earned.
[2]
During 2009 the 3
rd
respondent amongst others applied for the advertised post of senior
administration clerk grade 2 at the Newcastle dog unit.
[3]
Eight candidates were shortlisted and
following a series of interviews the evaluation panel listed, as
preferred candidates the
three top scoring candidates. The third
respondent was the fourth highest scoring candidate. These candidates
scores were:
Madida
Ramlal Hlongwane 3
rd
respondent
Competence
8
8
8
7
Prior
learning Training
and
development
9
8
5
6
Experience
8
8
8
7
Total
25
24
21
20
Percentage
83%
80%
70%
67%
[1]
[4]
Based on the above the evaluation panel
recommended the appointment of Madida as the most preferred
candidate, Ramlal
as the second most preferred candidate
and Hlongwane as the third most preferred candidate. As the fourth
highest scoring candidate
the third respondent was not on the
preferred list.
[5]
Madida was appointed to the post with
effect from 1 November 2009. It was in respect of this appointment
that third respondent raised
a grievance and ultimately declared a
dispute. In the third respondent’s referral of the dispute the
third respondent makes
the following averments:
a.
I
was not promoted into this post even though I have all the necessary
knowledge and skills perform duties attached to the promotional
post.
[2]
b.
That
the outcome required was: to be promoted with all costs backdated to
the next level.
[3]
c.
The
referral included an application to join
only the successful candidate Madida
in
which application the third respondent averred: I was unsuccessful
and I believe that I am the better candidate.
[4]
the third respondent did not either cite or join the second and third
ranked candidates.
[6]
The dispute was enrolled for arbitration
before the second respondent and at the commencement thereof the
third respondent’s
counsel clearly identified the nature the
dispute to be arbitrated as follows:
The
[third respondent] is aggrieved because he believed he fulfilled the
full criteria for this post. He also believed that he had
more
experience and qualifications to the successful candidate,
application equivalent.
[5]
[7]
It is abundantly clear from both the
referral of the dispute the third respondent’s confirmation of
the nature thereof and
the evidence adduced at the arbitration that
the third respondent was clearly only concerned with his score
vis-a-vis that of the
successful candidate Madida. There is nothing
in the record to show that the third respondent challenged the score
allocated to
the second and third recommended candidates or that he
regarded their score as being unreasonable or unfair.
[8]
Despite this absence of any evidence to the
contrary in the course of his award the second respondent saw fit in
his analysis of
the evidence and argument to record what he believed
“the scores awarded to the top four candidates should at best
for the
[applicant] have been”. In his revised score card
following his analysis of the evidence in which neither Ramlal nor
Hlongwane
are mentioned Ramlal’s score is reduced by two
points: 1 for competence, from 8 to 7 and 1 for experience, from 8 to
7. The
second respondent scorecard reads:
Madida
Ramlal Hlongwane 3
rd
respondent
Competence
7
7
7
8
Prior
learning Training
and
development
9
8
5
7
Experience
7
7
7
8
Total
23
22
19
23
Percentage
77%
73%
63%
77%
[6]
[9]
The second respondent expressly records
that his conclusion that this scorecard is the best the applicant
could have arrived is
based on his analysis of the evidence and
argument. What is conspicuous by its absence is any reference
whatsoever by the second
respondent to the scores allocated to Ramlal
by the evaluation panel that alone the appropriateness or otherwise
thereof.
[10]
It might well be so that the second
respondents conclusion that the applicants and Madida should have
been scored equally and that
on his analysis of the employment equity
considerations the third respondent should have been appointed there
is nothing to suggest
that the third respondent should have been
preferred to or scored better than Ramlal.
[11]
This is reinforced by the conclusion
reached by the second respondent at the conclusion of his award:
In the present
matter the respondent’s failure to promote the applicant was
unfair for a number of reasons which can be summarised
as follows:
·
the failure refusal to promote was caused
by unacceptable and irrelevant considerations on the part of the
respondent and bites
failure to take relevant considerations into
account;
·
the respondent failed to follow its own
policy and in particular its policy that the advancement of
employment equity should be
considered alongside factors such as
promotion of equal opportunities and fair treatment in the
advancement of service delivery;
·
the respondent failed to apply is mind to
the promotion of the applicant in particular failed to take into
account that he had been
performing the functions of the post for two
years and was still doing so the time that the appointment was made;
·
they were substantial reasons for the
respondent’s decision not to promote the applicant despite the
factors favouring his
promotion;
·
failure
to promote the applicant was unreasonable.
[7]
[12]
Whilst it is so that Madida was joined in
the proceedings but elected not to participate, Ramlal was not cited,
joined nor mentioned
in evidence and was apparently disregarded as a
potential candidate for the position.
[13]
Given the nature of the relief that the
third respondent sought namely that he be placed in a position
equivalent to the post on
the basis that he should have been
appointed in place of Madida it follows that it was incumbent upon
the third respondent not
only to show that he deserved to be
preferred to Madida but that he was the best candidate and therefore
entitled to appointment.
The third respondent did not seek
compensation for an unfair labour practice simply on the grounds that
Madida had been appointed
but he sought an order to the effect that
he be found to be the most successful candidate and therefore
entitled to the promotion.
[14]
The third respondent did not establish in
any way whatsoever that he was the best candidate. Accordingly the
third respondent was
not entitled to the relief that he sought.
[15]
It might well be that the second
respondents analysis of the experience, competence and prior learning
correctly identified the
applicant as the equal of Madida in the
absence of any evidence that he was the best candidate of all he was
not entitled to the
relief the second respondent awarded him.
[16]
The applicant’s grounds are that the
second respondents award is not one that a reasonable and objective
decision maker could
reach in relation to the reasons advanced; that
the second respondent exceeded his powers and that he committed a
gross irregularity
in the conduct of the proceedings by misconceiving
the nature of the enquiry.
[17]
The
test on review is enunciated in Goldfields Mining
[8]
,
a decision of the Labour Appeal Court.
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?
[9]
[18]
In this matter the second respondent
appears not to have understood the nature the dispute he was required
to arbitrate. The dispute
was, based on the third respondents own
submissions, whether he should have been appointed to the post in
place of the successful
candidate Madida. In order to establish this
it was incumbent upon the third respondent not only to deal with the
appointment of
Madida but to establish that he should have been
scored the best candidate. In order to do so it was necessary to
place before
the second respondent evidence to establish that he was
a better candidate than Ramlal. This he did not do.
[19]
In the circumstances the second respondents
decision as set out in the award is not a decision that “another
decision-maker
could reasonably have arrived at based on the
evidence”.
[20]
As far as costs are concerned I am not
satisfied that the requirements of fairness an order for costs.
[21]
Accordingly and for the reasons set out
above I make the following order:
a.
The arbitration award of the second
respondent dated 11 June 2013 under case number PSSS 16 – 10/11
is reviewed and set aside;
b.
There is no order as to costs.
D
H Gush
Judge
of the Labour Court of South Africa Durban
APPEARANCES:
FOR
THE APPLICANT: Adv D Pillay
Instructed
by: State Attorney Durban
FOR
THE RESPONDENT: T Mbili A P Shangase and Associates
[1]
Award page 19
[2]
Bundle of documents page 392
[3]
Bundle of documents page 393
[4]
Bundle of documents page 398
[5]
Record page 2-3
[6]
Award page 29
[7]
Award page 32 -33
[8]
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35
ILJ 943 (LAC)
[9]
At paragraph 20