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[2016] ZALCPE 18
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Buffalo City Public FET College v Commission for Conciliation, Meditation and Arbitration and Others (P372/12) [2016] ZALCPE 18 (4 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, HELD AT PORT ELIZABETH
Not
reportable
Case
no: P 372/12
In
the matter between:
BUFFALO CITY PUBLIC
FET
COLLEGE
First Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Applicant
COMMISIONER BONGANI
MBALI
N.O
First Respondent
KHAYA LURWENGU
Second Respondent
Heard
:
2 November 2016
Delivered
:
4 November 2016
Summary:
(Review application – inordinate delay in
prosecuting review not condoned)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review an
arbitration award in an unfair labour practice dispute. The
finalisation of the review application
has taken considerable time
because of various interlocutory proceedings, but also because of
significant delays on the part of
the applicant Buffalo City Public
FET College (‘the college’) to prosecute the review
expeditiously.
[2]
The third respondent, Mr K Lurwengu
(‘Lurwengu’) had claimed that the failure to appoint him
to the post of registrar
student support services in 2011 was
discriminatory in that the successful candidate had a “biological
connection”
with one of the senior managers. Prior to his
appointment, the applicant had been the HOD of student support
services since 2009
and his conduct had been faultless. Before that
he had worked as a student support officer.
[3]
Despite having two years managerial
experience in the post which was essentially the same as the post he
occupied, the successful
appointee, Madliki, was given the post
without any prior experience. The successful candidate also happened
to be the brother of
a senior manager, but she was not part of the
selection panel and did not work in the Academic Affairs division of
the college.
[4]
The college maintained that the applicant
did not score as well as the successful candidate in the interview
process. Furthermore
because the interview process was weighted more
heavily than the assessment process Madliki was appointed. However,
even on the
70:30 interview-assessment weighting ratio, the total
scores of Madliki and Lurwengu were the same at 63 out of a potential
100
points.
[5]
The arbitrator concluded that despite
Madliki’s sister holding a senior position at the school she
had no influence in the
recruitment process and that it was the
governing body which made the appointment. The crux of the
arbitrator’s reasoning
is contained in paragraphs 28 to 33 his
award. In summary, he reasoned that:
5.1
The evidence did not support a conclusion
that the successful candidate had more managerial experience than the
applicant and his
managerial experience met the requirements of the
post as advertised.
5.2
There was no justification for preferring
the successful candidate based on his supposed managerial ‘potential’
rather
than actual managerial experience in a similar environment to
the post advertised. Moreover managerial ‘potential’ was
not one of the criteria mentioned in the advertisement.
5.3
The college’s only witness Ms C
Tyldesley (‘Tyldesley’) had no direct knowledge of the
reasons why the panel did
not recommend the applicant as she was not
part of it. Further, the panel’s reasons were not stated in the
recommendations
to the governing body.
5.4
The college could not explanain why the
successful candidate was invited to a meeting with JET education
personnel before the interviews
were held, which the applicant should
have attended as the HOD of Student Services.
5.5
There was no reason to believe that the
applicant lacked managerial potential because of the supervisory post
he held, nor was there
any reason to believe he was not a suitable
candidate who did not meet the requirements of the job.
[6]
The arbitrator concluded that the college
had acted unfairly in not appointing him and ordered that the college
must remunerate
him at the same post as the post he unsuccessfully
applied for.
Grounds
of review
[7]
The college argued that the arbitrator
reached conclusions which no reasonable arbitrator could reach for
the following reasons:
7.1
The college contends that the arbitrator
misconstrued the evidence of the successful candidate’s
managerial experience because
he had acted in the post of registrar
at the time of the previous registrar’s absence on maternity
leave and thereafter.
Accordingly he had relevant managerial
experience. The third respondent denies that evidence of Madliki
working as a registrar
had ever been tendered during the arbitration,
but it is apparent from Tydesley’sevidence that she did say
that he had temporarily
acted in the place of Mrs Jagus, the previous
Registrar of Student Support Services from April until November.
Nevertheless, this
was never put to Lurwengu during his testimony.
7.2
The arbitrator failed to take account of
the fact that candidates were excluded due to their lack of
managerial experience.
7.3
The arbitrator failed to consider that the
applicant’s witness was the chief personnel officer who was
knowledge on matters
relating to employees when dismissing her
evidence on the basis that did not know the reasons for not
appointing third respondent.
7.4
The arbitrator misconstrued the evidence
about the reason for Lurwengu not attending the JET meeting. Only
staff were working at
the administration centre were invited to
attend and this had nothing to do with the distance between the
administration area and
the area where Lurwengu worked as the
arbitrator appeared to think.
7.5
The arbitrator incorrectly stated that no
evidence was presented that Lurwengu was not the suitable candidate
whereas clear evidence
was presented that the applicant did not
regard his experience as suitable.
7.6
The arbitrator could not conclude that
Lurwengu was the best candidate based on the evidence presented as
the assessment of showed
that Lurwengu had a lowest score of either
of the successful appointees.
7.7
The arbitrator had exceeded his powers in
appointing Lurwengu to a post level 5, whereas he could only award
him 12 months compensation
at most. It was conceded in argument that
this ground of review was invalid.
[8]
In the applicant’s supplementary
affidavit it submitted that:
8.1
The arbitrator had applied the incorrect
test in finding that there was no evidence to convince him that
Lurwengu was not a suitable
candidate did not meet the requirements
of the job, whereas the correct test was that he was required to
prove that he is the best
candidate for the post.
8.2
In similar vein, the arbitrator had
incorrectly placed the onus on the applicant to prove why Lurwengu
was not successful, whereas
that the applicant had committed an
unfair labour practice by not appointing him.
8.3
Lurwengu had not applied for the Academic
Registrar’s post but only for the registrar of Student Support
Services. Madliki
had initially been appointed for the post of
Academic Registrar and Ms Warrenberg for Students Service Registrar.
They swapped
portfolios after the appointments had been made.
Lurwengu incorrectly contends that this is evidence that never served
before the
arbitrator. He also argued that the letter of
recommendation recommended Madliki be appointed as Registrar of
Student Support Services.
Timeline
[9]
The third respondent contends that the
review application should be dismissed as it is deemed to have been
withdrawn in terms of
the provisions of the Labour Court practice
manual owing to the excessive delays in the college’s
prosecution of the review
application. In this regard the timeline of
the review application needs to be considered.
[10]
The applicant’s review application
was launched timeously on 7 September 2012. The third respondent
filed a notice of opposition
and, somewhat prematurely, an answering
affidavit on 23 October 2012. At that stage, the matter was handled
by an organisation
called Joblaw (Pty Ltd) on behalf of the College,
which I can only presume was a labour consultancy of some sort.
[11]
On 31 January 2013, a directive was issued
to the applicant to take the necessary steps to compel the CCMA to
lodge the record of
proceedings. Despite this directive no steps were
taken by the applicant to finalise the record in the ensuing two
years.
[12]
On 26th of May 2014 Lurwengu launched an
application to have the arbitration award made an order of court. On
7 August 2014 a directive
was issued to the effect that the
application to make the award an order of court did not comply with
clause 14.1.5 of the Labour
Court practice manual which came into
effect on 2 April 2 013, which relates to proof of service of an
application.
[13]
On 30 August 2014 a notice of withdrawal as
representatives of the applicant was filed by Joblaw. It was claimed
in the notice that
Joblaw had informed the applicant of the
withdrawal “some time ago”.
[14]
The applicant claims that it received ‘the
order‘ to make the award an order of court on 5 November
2014, though
presumably this is a reference to the application as the
order was only made on 20 November 2014. The college does not
properly
explain the circumstances in which Joblaw withdrew as its
representative. It claims it withdrew Joblaw’s mandate but
given
the date of Joblaw’s notice of withdrawal it is unclear
why the college was prompted to withdraw its mandate in August but
took no steps to oppose the application to make the award an order of
court in November.
[15]
In any event, on 20 November 2014 in the
absence of any opposition by the college the award was made an order
of court.
[16]
On 29 May 2015 the default order in terms
of section 158(1)(c) was rescinded. In terms of the judgment it was
also noted that the
application to make the award an order of court
was served and accepted by the applicant on that date.
[17]
It was only on 10 June 2015 that the record
was filed and the applicant filed its supplementary affidavits on 21
August 2015 in
the review application. No answering affidavit was
ever filed by the applicant in opposition to the s 158(1)(c)
application to
make the award and order of court. On 23 August 2016
the matter was postponed to 2 November 2016.
[18]
The third respondent has filed a further
affidavit raising the point that the review application is deemed to
have been withdrawn
in light of the failure of the applicant to file
the record within 60 days of being advised to by the registrar.
[19]
While denying that any such advice had been
received from the registrar, the applicant asks condonation for its
non-compliance with
the practice manual. By way of a somewhat
backhanded request for the condonation of its conduct, the applicant
says that it terminated
the services of Joblaw when it became
apparent “they were not properly protecting the interests of
the applicant”.
It further states that it could do nothing
further in the review application until it rescinded the court order
on 29 may 2015.
This is the sum total of its explanation for the
delay in finalizing the review application.
[20]
In terms of clause 11.2.3 of the Labour
Court practice manual if a record is not filed within the 60 day
period it is deemed to
have been withdrawn unless during that time
the respondent has consented to an extension of time, or failing
which a judge in chambers
as flouted such an extension. Clause 11.2.7
of the same manual emphasises urgent nature of review applications
and that if an applicant
has not finalise the application within 12
months of launching it the application is regarded as lapsed and will
be archived unless
good cause is shown why it should be removed from
the archives. Clause 16.3 makes it clear that the consequence of
archiving file
is that the matter is treated as dismissed, though in
terms of clause 16.2 an application may be made to revive the file.
[21]
In this case, the applicant has not brought
an application to revive the review, but in so far as it seeks
condonation for its non-compliance
this is provided in the slender
explanation alluded to above.
[22]
Even
if the practice manual was not applicable, the applicant ought to
provide an explanation for its inordinate delay. See
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[1]
[23]
I accept that once the court had made the
arbitration award an order of court, the applicant could take no
further steps to prosecute
the review application until it had
rescinded that order. However, the award was only made an order of
court on 20 November 2014,
well over two years after the review
application had been launched. Other than to vaguely allude to the
supposed inadequacy of
Joblaw, the applicant provides absolutely no
explanation for its abject failure to do anything further to
prosecute the review
application. It also provides no explanation why
it did not comply with the directive to finalise the record. It is
simply insufficient
for it to provide a one line explanation for two
years of inactivity if it wishes the review application to proceed.
[24]
Mr Simoyi
,
for the applicant, nonetheless urged me to consider the merits of the
review application before dismissing it solely on account
of the
undue delay and the poor explanation therefor. In doing so I will
focus on the college’s stronger grounds of review.
[25]
Firstly, I accept that it is correct that
the arbitrator misconstrued the evidence of Madliki’s
managerial experience because
he did not take account that he had
acted in the post of registrar student support services for some
months after the previous
incumbent left. Accordingly he had relevant
managerial experience.
[26]
The
arbitrator had also applied the incorrect test in finding that there
was no evidence to convince him that Lurwengu was not a
suitable
candidate did not meet the requirements of the job, whereas the
correct test was that he was required to prove that he
was the better
candidate for the post. I agree that the arbitrator reversed the onus
which lay on Lurwengu and replaced it with
an onus on the college to
prove that he was not a suitable candidate. It is also important to
mention that it was not sufficient
for Lurwengu to establish merely
that he was a suitable candidate for appointment but also that he was
better than the others.
[2]
[27]
Would it have been irrational of the
arbitrator to conclude that Lurwengu was the best candidate based on
the evidence presented,
if the onus was correctly applied ?
Mr
Simoyi
argued that I had to have regard
to the supplementary affidavit of the college in which it had stated
that the arbitrator had failed
to consider that Lurwengu had applied
for the post of Registrar: Student Support Services and another
candidate, Mrs Warrenberg
, was rated as the best candidate for that
post . He argued that since Lurwengu did not take issue with this in
his answering affidavit,
this contention was undisputed.
[28]
However, a review application can only deal
with evidence that was before the arbitrator not with evidence
presented after the fact
on review. The question therefore is whether
it was clear from the evidence of the arbitration that Lurwengu would
not have been
appointed on account of Warrenberg ’s assessment.
Scrutinising the record shows that it was put to Lurwengu that
Warrenberg’s
total score of 70 was higher than his own of 63
and that they had both applied for the position of registrar student
Support Services.
The third respondent did not dispute this but
questioned whether the assessment could be objective given that
Warrenberg came from
an academic background and had no experience of
managing budgets as he had.
[29]
Mr Simoyi
contended
that since Warrenberg was the better candidate for Registrar: Student
Support Services, Lurwengu’s case that he
should have been
appointed was untenable. Shortly after the appointment of Madliki to
registrar: academic and Warrenberg to Registrar:
Student Support
Services, it was decided for operational reasons that they should
swap positions. The operational issue concerned
the fact that it was
considered more appropriate for a male person to be dealing with
students in residences, which the Student
Support Services post
entailed. What this meant though, was that Madliki was ultimately
appointed to the post which Lurwengu had
applied for in circumstances
where they obtained the same overall score as a result of the
assessment and interview process. It
is clear from the arbitrator’s
own queries about this issue during the arbitration that he was
concerned about the anomaly
that Madliki could end up being appointed
to a post on the basis of being the successful candidate for a
different post but then
appointed to another, whereas his overall
rating was the same as Lurwengu who had also applied for that very
post. What this plainly
raised in the arbitrator’s mind was
whether it could be fair that Madliki could be appointed to the post
which Lurwengu had
also applied for by being moved sideways from the
academic registrar’s post.
[30]
As far as the evidence of Madliki’s
managerial experience in the post of acting registrar is concerned,
this was only raised
when Tydesley gave evidence and was never put to
Lurwengu during his cross-examination. The arbitrator had also
clearly been reluctant
to accept the rationalisation of Tydesley as
to why Madliki was the better candidate of the two, especially given
that she was
not even a participant in the assessment process. At the
arbitration there was also no minute presented of the panel
discussion
to validate Tydesley’s hearsay testimony as to the
value attached by the panel to Madliki’s managerial experience.
[31]
Having considered the above, I am not
persuaded that the review application would have necessarily have
been successful because
Warrenberg,who was initially appointed, had a
better score than Lurwengu. The issue confronting the arbitrator was
that the person
who was ultimately appointed to the position of
Registrar: Student Support Services very shortly after the conclusion
of the selection
process was not demonstrably better equipped for the
position that he was. The fact that Madliki’s appointment to
that post
occurred on account of ‘operational reasons’
and not as a result of the interview and assessment process, did not
prevent
Lurwengu from contending that the failure to appoint him to
the post was unfair. On the evidence before the arbitrator, it could
not be said that the evidence showed that Madliki was obviously a
better candidate for that post than Lurwengu even if Warrenberg,the
initial appointee might have been.
In
short, I am not persuaded that the merits on review are compelling
enough to make me disregard the college’s neglect in
prosecuting the review application timeously. It also has failed to
even file a full record even at this late stage. In this regard
it
must be mentioned that despite the elapse in time, the transcript is
still incomplete as it completely omitted the evidence
of Madliki
which is dealt with in the arbitrator’s award and was clearly
an important factor in reaching his decision. Furthermore,
the
college failed to file the bundle of documents used in the
arbitration.
[32]
In the circumstances, I am satisfied that
the applicant has failed to provide good cause why it should be
allowed to pursue its
review application despite its inordinate
delay, its non-compliance with the directive of the court of 13
January 2013, the inadequate
explanation for its delay and its
failure to file the full record nearly four years after the review
was launched.
Order
[33]
The review application is dismissed.
[34]
The arbitration award dated 24 July 2012
issued under case number ECEL 94-12 by the second respondent is made
an order of court.
[35]
The applicant must pay the third
respondent’s costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Madliki
Simoyi instructed by the State Attorney
THIRD
RESPONDENT:
Z
Madliki Maseti instructed by S N Jiba Attorneys
[1]
(2016)
37 ILJ 313 (CC) at 323-330
[2]
See
Ndlovu
v Commission for Conciliation, Mediation & Arbitration &
others
(2000) 21
ILJ
1653 (LC)
at 1655-1656:
[11]
… It can never suffice in relation to any such question [in
an unfair labour practice dispute over non-appointment
to a post]
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 was unfair. That will almost
invariably involve comparing the qualities of the 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.” (emphasis added)