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[2016] ZALCJHB 43
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Maimela and Others v Safety and Security Sectoral Bargaining Council and Others (JR1871/13) [2016] ZALCJHB 43 (8 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JR1871/13
In
the matter between:
BOTSILE MAIMELA
First Applicant
FANKIE MALEPA
Second Applicant
FUNEKA MFAZWE
Third Applicant
CHARLES MOHUDI
Fourth Applicant
and
THE SAFETY &
SECURITY SECTORAL
BARGAINING
COUNCIL
First
Respondent
K. DRISCOLL N.O.
Second
Respondent
THE SOUTH
AFRICAN POLICE SERVICES
Third Respondent
GM VAN DER MERWE
Fourth
Respondent
Date
heard: 5 August 2015
Delivered:
8 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicants (who have the rank of Lieutenant Colonel in the SAPS)
seek the setting aside of an award by the second respondent
(the
arbitrator) under case numbers PSSS 572/ 573 /575/576-11/12 dated 11
July 2013. The arbitrator found that the SAPS did not
commit an
unfair labour practice by failing to appoint the applicants to post
06/14/2010 and appointing the fourth respondent,
a white male to the
post instead.
[2]
The pre-arbitration minute which the applicants stood by in the
arbitration proceedings, required the arbitrator to decide whether
the employer followed its own policies in appointing the fourth
respondent (the successful candidate); the suitability of the
successful candidate and whether the applicants suffered an unfair
labour practice. They sought that the appointment of the successful
candidate be declared null and void and the interview procedure to
start afresh and in addition that they receive compensation
for the
unfair labour practice suffered by them.
[3]
The grounds of review contained in the founding papers are as follows
that:
3.1
The arbitrator erred in finding that that the Council did not have
jurisdiction to consider whether or not
the SAPS was bound to follow
its Employment Equity Plan.
3.2
That the arbitrator committed gross misconduct in failing to find
that selection panel member Brig. Mogale’s
non-disclosure of
his relationship with the successful candidate (despite finding that
this relationship was a good one) was prejudicial
to the applicant.
3.3
The arbitrator committed gross misconduct in blindly accepting the
score that the Fourth Respondent purportedly
obtained without
adequate proof thereof.
[4]
In his award the arbitrator records that: “...the Applicants
were cautioned that should they intend to argue that the
Respondent
was obliged to appoint them in terms of the Respondent’s
employment equity plan or the provisions of the Employment
Equity Act
or that the Respondent had discriminated against them, that the
Bargaining Council was not the correct forum for such
a matter”.
The applicants did not pursue the first ground of review in the
proceedings before me.
[5]
There were specific issues raised by the applicants in the
proceedings in respect of the conduct of the selection process, in
addition to the inclusion of Brig. Mogale in the panel. These
included that:
5.1
The score sheets of the successful candidate were not provided to the
applicants;
5.2
That the selection panel classified the successful candidate as an
African male and this was not corrected
prior to his appointment.
[6]
The successful candidate (a white male) was the second respondent in
the arbitration proceedings. The arbitrator found as follows
in
respect of the score sheets:
“
While
I am aware that the Respondent unnecessarily clouded this issue by
not providing the 2
nd
Respondent’s score sheets to the applicants, I am not persuaded
that there is an absence of evidence on this point. It was
Brig.
Chilambe’s evidence that the minutes signed by the chairman of
the selection panel indicates the 2
nd
Respondent’s score and that the list also forwarded by the
Human Resources department to Head Office also reflected the 2
nd
Respondent’s score (see page 124 to 129 bundle R3.) Brig.
Chilambe further testified that he had been a member of the selection
panel and that he could confirm that the 2
nd
Respondent had indeed had the highest score.”
[7]
In as far as the miss-classification of the successful candidate and
taking into account the SAPS policy on appointments the
arbitrator
reasoned as follows:
“
In
terms of the National Instruction, the selection panel and the
Respondent, through the Provincial or Divisional Commissioner,
is
required to take equity into consideration when selecting candidates
for potential appointment. There is nonetheless no provision
in the
National Instruction that precludes the appointment of White males or
that the RAG numbers must be applied without exception
or discretion.
Indeed the Labour Appeal Court in
South
African Police Services v Solidarity obo Barnard
(2013) 1 BLLR (LAC) was of the view that the composition of the
Respondent with regard to filling of posts remained the prerogative
of the National Commissioner. If the Respondent had intended to make
an affirmative action appointment and the 2
nd
Respondent were listed as a White male then the Provincial or
Divisional Commissioner has the discretion in terms of the National
Instruction to appoint……..If the 2
nd
Respondent had still appeared erroneously as an African male then
there would have been necessity for the request for a motivation
from
the interview panel, as the 2
nd
Respondent would ostensibly have fulfilled the Respondent’s
equity requirements. I have no reason not to accept Brig. Chilambe’s
evidence that the reason the panel had been requested to submit a
motivation for the recommendation of the 2
nd
Respondent was because the 2
nd
Respondent is a White male. I further agree with the Respondent’s
contention that it is clear from the content of the motivation
that
it related to the 2
nd
Respondent and the post in question despite the incorrect post number
being used.”
[8]
In addition, the arbitrator expressed the following significant
insight in respect to the applicants’ case:
“
Having
considered the issues raised by the Applicants, it is apparent that
the Applicants have not materially dealt with the biggest
obstacle to
their claim, namely, that none of the Applicants obtained scores
which placed them amongst the top three candidates.
It was not
disputed that the 2
nd
Respondent met the minimum requirements for the post and I may
therefore accept that the Applicants did not possess qualifications
or experience which the second respondent does not equally possess.
Even if I accept that Brig. Mogale should not have participated
in
the selection process, he did not score the Applicants on his own and
a removal of Brig. Mogale’s assessment would not
reasonably
catapult the Applicants, in the circumstances, into the position of
the highest scoring candidates.”
[9]
In view of the above reasoning by the Arbitrator, and taking into
consideration the grounds of review relied upon by the applicants
and
the record before me, I cannot find that the result of the
arbitration was one that a reasonable decision maker could not
make.
[1]
The applicants must
therefore fail in their application. I do not consider it apposite to
award costs in this matter on grounds
of law and equity
[2]
.
I therefore make the following order:
Order
1.
The review application is dismissed.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicants:
Thapelo Kharametsane Attorneys
Third
Respondent: Advocate Molatelo Malowa
Instructed
by: The
State Attorney
[1]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
2013 (6) SA 224
(SCA);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
(2014) 35 ILJ 943 (LAC)
[2]
NUM
v East Rand Gold & Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A); (1991) 12 ILJ 1221 (A) at 738–9.