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[2017] ZALCJHB 29
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Seleoane v Tshwane University of Technology (J1525/08) [2017] ZALCJHB 29 (24 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: J1525-08
In
the matter between:
LEBOHANG
SELEOANE
Applicant
and
TSHWANE
UNIVERSITY OF
TECHNOLOGY
Respondent
Heard:
10, 11 May; 18 June 2012; 19, 20, 21 September 2016
Closing
submissions: 25 October 2016
Delivered:
24 January 2017
JUDGMENT
WHITCHER
J
[1]
Applicant's claim against Respondent is for an automatically unfair
dismissal ("the main claim"),
alternatively
an
unfair dismissal based on Respondent's operational requirements ("the
alternative claim").
[2]
In his statement of claim, on the main claim, Applicant alleges that
the real reason for his dismissal was the fact that he
had pursued a
grievance against Prof Tyobeka, the then Vice-Chancellor of
Respondent. In the alternative, Applicant alleges that
his dismissal
due to Respondent's operational requirements was procedurally and
substantively unfair in that he was qualified and
suitably
experienced to be placed, alternatively interviewed and appointed to
2 posts which existed at the time, namely: Director:
Transformation,
Employment Equity and Diversity and Director: Employee/Labour
Relations and Safety, Health and Environment. Respondent
further
failed to consult meaningfully with him on the reasons he was not
placed or appointed to one of the said two posts. Respondent
further
made no
bona fide
attempts to avoid his retrenchment.
[3]
Respondent denies Applicant's claims and contends that Applicant was
dismissed due to its operational requirements, which dismissal
was
both procedurally and substantively fair.
The
legal principles applicable to automatically unfair dismissals
[4]
In
SACWU
and Others v Afrox Ltd,
[1]
the
Labour Appeal Court in dealing with an automatically unfair dismissal
in terms of section 187(1)(a) of the LRA (protected strike
action),
said the following:
"The enquiry into the reason for
the dismissal is an objective one, where the employer's motive for
the dismissal will merely
be one of a number of factors to be
considered. This issue (the reason for the dismissal) is essentially
one of causation and I
can see no reason why the usual twofold
approach to causation, applied in other fields of law, should not
also by utilized here
... The first step is to determine factual
causation: was participation or support, or intended participation or
support, of the
protected strike a sine qua non (or prerequisite) for
the dismissal? Put another way, would the dismissal have occurred if
there
was no participation of support of the strike? If the answer is
yes, then the dismissal was not automatically unfair. If the answer
is no, that does not immediately render the dismissal automatically
unfair; the next issue is one of legal causation, namely whether
such
participation or conduct was the 'main' or 'dominate', or
'proximate', or 'most likely' cause of the dismissal. There are
no
hard and fast rules to determine the question of legal causation ...
I would respectfully venture to suggest that the most practical
way
of approaching the issue would be to determine what the most probable
inference is that may be drawn from the established facts
as a cause
of the dismissal, in much the same way as the most probable of
plausible inference is drawn from circumstantial evidence
in civil
cases ..."
[5]
The Labour Appeal Court in
Kroukam
v SA Airlink (Pty) Ltd
[2]
held
as follows at paras. 28 - 29:
"In my view, s 187 imposes an
evidential burden upon the employee to produce evidence which is
sufficient to raise a credible
possibility that an automatically
unfair dismissal has taken place. It then behoves the employer to
prove to the contrary, that
is to produce evidence to show that the
reason for the dismissal did not fall within the circumstances
envisaged in s 187 for constituting
an automatically unfair
dismissal.
The further question then arises as to
the approach to the evidence led by the respective parties. The
answer can be illustrated
by way of the following example: Assume
that an employee can show that she was pregnant and dismissed upon
the employer gaining
knowledge thereof. The court would examine
whether, upon an evaluation of all the evidence, pregnancy was the
'dominant' or most
like cause of the dismissal."
[6]
In
State
Information Technology Agency (Pty) Ltd v Sekgobela
[3]
the
LAC held:
“
In cases
where it is alleged that the dismissal is automatically unfair, the
situation is not much different save that the 'the
evidentiary burden
to produce evidence that is sufficient to raise a credible
possibility that an automatically unfair dismissal
has taken place
rests on the applicant (employee). If the applicant succeeds in
discharging his evidentiary burden then the burden
to show that the
reason for the dismissal did not fall within the circumstances
envisaged by s 187(1) of the LRA rests with (employer).
It is evident
therefore that a mere allegation that there is a dismissal is not
sufficient but the employee must produce evidence
that is sufficient
to raise a credible possibility that there was an automatically
unfair dismissal”.
[7]
In a situation where there could be more than one reason for a
dismissal co-existing contemporaneously, Van Niekerk AJ (as he
then
was) stated the following in
Van
der Velde v Business and Design Software (Pty) Ltd:
[4]
·
“
The
Applicant must prove the existence of a dismissal and establish that
the underlying transaction is the one that falls within
the ambit of
s197.
·
The
Applicant must adduce some credible evidence that shows that the
dismissal is causally connected to the transfer. This is an
objective
enquiry, to be conducted by reference to all of the relevant facts
and circumstances. The proximity of the dismissal
to the date of the
transfer is a relevant but not determinative factor in this
preliminary enquiry.
·
If
the Applicant succeeds in discharging these evidentiary burdens, the
employer must establish the true reason for dismissal, being
a reason
that is not automatically unfair.
·
When
the employer relies on a fair reason related to its operational
requirements (or indeed any other potentially fair reason)
as the
true reason for dismissal, the court must apply the two-stage test of
factual and legal causation to determine whether the
true reason for
dismissal was the transfer itself, or a reason related to the
employer's operational requirements.
·
The
test for factual causation is a 'but for' test - would the dismissal
have taken place but for the transfer?
·
If
the test for factual causation is satisfied, the test for legal
causation must be applied. Here, the court must determine whether
the
transfer is the main, dominant, proximate or most likely cause of the
dismissal. This is an objective enquiry. The employer's
motive for
the dismissal, and how long before or after the transfer the employee
was dismissed, are relevant but not determinative
factors.
·
If
the reason for dismissal was not the transfer itself (because, for
example, it was a dismissal effected in anticipation of a
transfer
and in response to the requirements of a potential purchaser of the
business) the true reason may nonetheless be a reason
related to the
transfer.
·
To
answer this question (whether the reason was related to the transfer)
the court must determine whether the dismissal was used
by the
employer as a means to avoid its obligations under s197. (This is an
objective test, which requires the court to evaluate
any evidence
adduced by the employer that the true reason for dismissal is one
related to its operational requirements, and where
the employer's
motive for the dismissal is only one of the factors that must be
considered.)
·
If in
this sense the employer used the dismissal to avoid its s 197
obligations, then the dismissal was related to the transfer.
·
If
not, the reason for dismissal relates to the employer's operational
requirements, and court must apply s 188 read with s 189
to determine
the fairness of the dismissal”.
[8]
Although the above matter concerned a dismissal allegedly in breach
of
section 197
of the
Labour Relations Act, 1995
, the analogy to the
current matter is relevant. On this authority the Court has to
determine whether “but for” the
grievance, Applicant
would not have been dismissed; and whether the laying and pursuit of
the grievance was the main, dominant,
proximate or most likely cause
of the dismissal, if the facts show more than one reason may have
been the reason for the dismissal.
Background
facts
[9]
Respondent came into existence on 1 January 2004 out of a statutory
merger of three technikons, namely North-West, Northern
Gauteng and
Pretoria. The merger resulted in a new employment structure
negotiated with representative trade unions operating at
the
technikons. The new employment structure retained certain jobs,
created new ones and rendered certain functions and jobs redundant.
A match and place policy, negotiated with the unions, was used
to place and redeploy existing staff in the new employment
structure
according to their substantive posts held at the time of the merger.
Sub-placement committees submitted proposals on
the placement of
staff to the Core Placement Committee for ratification of the
proposal or a remittance to the sub-committee where
the Core
Placement Committee was not satisfied with the proposal of the
sub-committee. Those who could not be placed or redeployed
were
retrenched.
[10]
Applicant rendered his services to the HSRC for the period 1 November
1995 until 1 March 2003, when he was appointed to the
post of
Director: Promotion of Access to Information and Planning at the
Technikon North-West. When Respondent came into existence,
Applicant
was appointed Interim Campus Director of Respondent’s
Ga-Rankuwa campus as his substantive post, Director: Promotion
of
Access to Information and Planning, no longer existed in the new
employment structure. As Campus Director Applicant reported
directly
to Prof Tyobeka, the then Vice-Chancellor of Respondent.
[11]
During March 2007 Applicant lodged a formal grievance against Prof
Tyobeka, alleging that Prof Tyobeka was managing him in
a manner that
lacked integrity, harassing him and constructing circumstances where
he might become redundant. The grievance was
referred to private
arbitration and on 18 April 2008 the arbitrator issued an award.
[12]
The arbitrator found in favour of Applicant in respect of the first
allegation, but this related to events which occurred as
far back as
2005 and moreover holds no significance for the case before me.
[13]
However, relevant to the case before me, since exactly the same
allegations were made before me in the context of Applicant’s
claim of an automatically unfair dismissal and an unfair
retrenchment, the arbitrator found no merit in the claims that Prof
Tyobeka
was harassing Applicant and/or constructing circumstances
where he might become redundant. A summary of the evidence from the
award
and the arbitrator’s findings follow.
13.1 In
September 2006, Prof Mashego, the then Deputy Vice-Chancellor: HR
proposed to Prof Tyobeka that a permanent
post of Presiding Officer
be created and Applicant be employed in this position. The suggestion
was made out of a concern that
Applicant’s substantive post no
longer existed in the new employment structure of Respondent. The
arbitrator, reasonably
in my view, found that Prof Tyobeka and Prof
Mashego’s successor, Ms Thabanelo correctly did not support the
proposition
because they did not have the authority to personally
create posts, especially level 4 posts, and appoint anyone to same.
Only
Council had the power to create such posts and there were
official standing procedures for appointing staff to said posts. The
arbitrator found that the existence of this policy was not disputed
by Applicant.
13.2
Applicant alleged that Prof Tyobeka had obstructed his chance of
being appointed to the post of Strategic
Advisor to the
Vice-Chancellor in December 2006. Prof Tyobeka had encouraged him to
apply for the post and he was short-listed.
Applicant, however,
withdrew his application when he found out that Prof Tyobeka had also
initiated a head-hunt for female candidates
as well. Prof Tyobeka
explained that Council often complained about the
under-representation of female executive employees. The
arbitrator,
correctly, found Prof Tyobeka’s explanation reasonable.
Moreover, in my view, reserving such a post for Applicant,
a level 5
employee, would have constituted an unfair labour practice
considering Respondent had procedures for appointing staff
to level 4
posts.
13.3
Applicant pointed to another incident which he claimed showed Prof
Tyobeka was engineering his redundancy.
When it was decided that the
executive deans would take over the management of the campuses,
Applicant raised a concern with Prof
Tyobeka about his future at
Respondent. Prof Tyobeka told him that there was a management post in
Dr Nevhutalu’s department
and arranged for him to meet Dr
Nevhutalu to discuss the possibility of him being appointed in an
acting capacity pending the match
and placement exercise. Applicant
considered this a demotion and told Dr Nevhutalu and Prof Tyobeka
that since it was possible
that the outcome of the meeting might
trigger a labour dispute, he wanted to electronically record the
meeting with his recorder.
Dr Nevhutalu viewed this as a blatant
unreasonable show of distrust and angrily told Applicant that he did
not want a person such
as Applicant in his environment. Applicant
responded that he too would not want to work with Dr Nevhutalu.
Applicant contended
that Prof Tyobeka should have called Dr Nevhutalu
to order, and his failure to do so was further proof that he was
trying to engineer
his redundancy. The arbitrator rejected this
contention. He pointed out that Prof Tyobeka had taken the trouble to
arrange the
meeting and Applicant had himself angrily said that he
did not wish to work with Dr Nevhutalu.
[14]
Before the above award was issued, Applicant received a letter dated
1 February 2008 informing him that he could not be placed.
When he
enquired as to why he was not placed, he was told that no post
similar to the one he occupied prior to the merger, namely
Director:
Promotion of Access to Information and Planning, existed in the new
employment structure. He was further informed that
he had been
referred to the redeployment committee to be considered for any other
position at the same level.
[15]
On 14 February 2008 Applicant lodged an appeal against his
non-placement. He was informed on 9 June 2008 that his appeal had
failed and on 11 June 2008 he was advised that he could not be placed
or redeployed and will be retrenched. After an interim application
to
the Labour Court to stay the dismissal Applicant was dismissed on 3
September 2008. He referred a dismissal dispute to the Labour
Court.
[16]
As stated before, in his statement of claim, on the claim of an
automatically unfair dismissal, Applicant alleges that the
real
reason for his dismissal was the fact that he had pursued a grievance
against Prof Tyobeka.
[17]
In the alternative, Applicant alleges that his dismissal due to
Respondent's operational requirements was procedurally and
substantively unfair in that he was qualified and suitably
experienced to be placed, alternatively interviewed and appointed to
2 posts which existed at the time, namely: Director: Transformation,
Employment Equity and Diversity and Director: Employee/Labour
Relations and Safety, Health and Environment. Respondent further
failed to consult meaningfully with him on the reasons he was
not
placed or appointed to one of the said two posts. Respondent further
made no
bona fide
attempts to avoid his retrenchment.
Applicant’s
closing submissions on the evidence adduced at trial
[18]
In respect of the above positions, Ms Van Heerden, testifying on
behalf of Respondent, averred that Applicant does not have
5 years’
experience at a management level in respective fields. His CV,
however, and his evidence disclose that as campus
director he managed
employees for just over 3 years, he had managed a community centre
from 1990 – 1994 and had been employed
as an education officer
by a trade union for 2 years from 1988-1990.
[19]
The only specific reason advanced by Respondent for not considering
him for the Employee/Labour Relations post was that he
had shown a
lack of objectivity in pursuing his own grievance – Ms
Tlhabanelo deposed to this fact in an interim application
to this
Court. However, an individual can scarcely be expected to be neutral
and objective in his own case and the remarks of Prof
Tyobeka about
Applicant in his reply to Applicant’s grievance are telling:
“
It
is important to point out that Mr Seleoane’s role and
contribution to the resolution of disputes and discipline in the
University has never been questioned by the Human Resource Division
nor by me. All of us have seen this as one of his fortes and
have
been highly appreciative of (sic) way he has handled these cases”.
[20]
One explanation for Respondent’s failure to “give”
one of the posts to Applicant without him having to compete
for it
was that these posts were outside the redeployment process. It was
put to Applicant that the two positions had been considered
by the
time he entered the redeployment pool and were thus no longer
available to him, and that Van Heerden would depose to this
fact. She
did not testify to this fact but said that Applicant took himself out
of the redeployment pool by appealing the decision
of the placement
committee.
[21]
Neither of these two reasons are consistent with the “Criteria
of Placement of Staff” which prescribes that unplaced
staff
“...will be considered for redeployment first of all”.
The contention is also at odds with what Tlhabanelo said,
which is
that the redeployment committee would deal with “that pool”
(of people) against what they will be having (available
positions).
[22]
Furthermore, placement policy prescribes internal advertisements
prior to external ones. There was no evidence that this was
done and
the successful candidate in respect of the transformation post was an
external candidate.
[23]
Van Heerden could not say whether the redeployment committee of 10
June 2008 considered Applicant for either of the 2 positions,
which
were not filled at that stage and no minutes of that meeting were
produced. Applicant was thus not redeployed to either suitable
post
and this conduct is unexplained.
[24]
In addition, during October 2007, after Applicant had laid the
grievance on 12 March 2007, and after he had, from a functional
point
of view anyway, been emasculated by Prof Tyobeka, Prof Sebara
approached Dr Nevuthalu to mediate a settlement of the dispute
between Applicant and Prof Tyobeka and the reaction was that if
Applicant is to be retrenched he must be retrenched. It was put
to
Applicant that this conversation never occurred, although Dr
Nevuthalu never denied it whilst testifying. Such a reaction warrants
an inference that Respondent’s management were determined to be
rid of Applicant and the most probable reason is that he
laid the
grievance. This inference is strengthened by the fact that Applicant
was the only level 5 employee to be retrenched and
his name is the
only one to be mentioned at the meetings of the Placement Committee
during November 2007. Van Heerden could not
explain why.
[25]
What also indicates the motive or reason for Applicant’s
dismissal as being the grievance he laid is the timing and manner
of
his dismissal. On 15 May 2008 the Placement Appeal Committee defers
consideration of Applicant’s appeal until the Council
of the
University has considered Applicant’s grievance. There is no
evidence that the Council, as opposed to individual members
thereof,
considered the outcome of the arbitration on the grievance before the
Appeal Committee on 9 June 2008 considered and dismissed
Appellant’s
appeal on 9 June 2008. It is to be inferred from the letter of
dismissal that the Redeployment Committee sat
on 10 June 2008 and the
letter of dismissal was signed on 11 June 2008 – without the
Council considering the grievance. The
natural inference is that the
process was hastened to avoid having to deal with the grievance,
which Tyobeka conceded was never
dealt with.
[26]
A further factor to be considered is that the dispute about
Applicant’s dismissal was not referred to the “conciliation
committee” recommended by the Sithole Commission. Van Heerden’s
contention that this recommendation was not implemented
regarding
dismissal disputes is not only inherently improbable, it was also not
put to Applicant when he testified. It is submitted
that the most
probable reason for Applicant’s dispute not being referred to
this Committee is that management could not contemplate
his return in
the light of his successful grievance against Tyobeka.
[27]
If one further considers the statement by Prof Tyobeka in his answer
to Applicant’s grievance, that the relationship
of trust
between him and Applicant had broken down beyond repair and
Tlhabanelo’s statement that Applicant was conducting
a “bitter
vendetta against management, the Vice Chancellor and the Council of
the University”, the contention that
Applicant’s
grievance was the most probable cause for his dismissal gains
considerable traction.
[28]
Taking all the above into account Respondent has not proven that the
grievance was not the dominant or most probable cause
of the
dismissal.
[29]
Regarding Respondent’s claim that Prof Tyobeka’s attempts
to place Applicant in various posts are quite inconsistent
with a
hidden agenda to dismiss him for having laid the grievance, a perusal
of the evidence shows that:
(a)
Prof
Tyobeka’s conduct in relation to the presiding officer’s
position was not transparent nor in accordance with the
objective
realities. Despite apparently giving Professor Molefe
carte
blanche
to proceed with the appointment on 12 September 2006, he had
reservations about the transition at the top post of the Human
Resources
Department to Tlhabanelo. The matter then ran aground
because Tlhabanelo did not want another high level employee in her
department,
despite the recommendation being that the post be at the
same level then occupied by Applicants. The reason advanced by Prof
Tyobeka
for not implementing this suggestion by Prof Molefe was never
discussed with Applicant.
(b)
The
strategic advisor post was lost because of an unfortunate hear-say
communication to Applicant. But when Applicant sought Prof
Tyobeka’s
input on his concerns, he was given the run-around.
(c)
The
post in Dr Nevuthalu’s department was lost when Applicant
sought to record the meeting with Dr Nevuthalu and Prof Tyobeka.
What
Prof Tyobeka singularly failed to do was to admonish Dr Nevuthalu and
point out that there was nothing wrong with Applicant
recording the
proceedings.
(d)
There
is a conflict in the evidence about whether Prof Tyobeka suggested
Applicant apply for a Campus Director post at one of the
satellite
campuses and for other available Director’s posts. What is
clear, however, is that none of these posts were suggested
to the
Redeployment Committee so that they could treat Applicant like all
other employees and place him in one of if they deemed
it
appropriate. This probably was because Applicant was taken out of the
redeployment pool due to his appeal in conflict with the
negotiated
procedures which Van Heerden conceded did not provide for such an
event and because Prof Tyobeka and Dr Nevuthalu wanted
to rid
themselves of Applicant because of the grievance.
[30]
Lastly, Respondent’s document, “Retrenchment for the
‘Match and Place’ reads, in part:
“
The
TUT will make all reasonable efforts to redeploy staff whose
positions are redundant to suitable alternative employment.
Retraining
of staff will be considered where appropriate within a
reasonable period and in accordance with the match and place
criteria”.
[31]
In terms of the above, Respondent, at the very least, should have
appointed Applicant to the Transformation Post when it’s
selected external candidate declined it.
Analysis
of the evidence and arguments
[32]
The question is: Would Applicant’s dismissal have taken place
but for Applicant laying the grievance? In my view the
answer to this
question is undoubtedly yes – the evidence adduced by
Respondent established that Applicant’s dismissal
naturally and
logically arose out of an objective application of the new employment
structure and the match and placement policy
negotiated with the
unions.
[33]
The new employment structure retained certain jobs, created new ones
and rendered certain jobs redundant. A match and
place policy -
“Criteria for Placement of Staff (Post Levels 5 – 18)’
- was used to place post levels 5 –
18 staff in post appearing
in the new employment structure. The
substantive posts
of the
employees were used as comparators in the match and placement
exercise. To be placed in a post appearing in the new structure,
the
job content of the new post had to be “significantly the same
as previously.” Van Heerden said the committee looked
for at
least a 50% match between the substantive post of an employee and a
post in the new structure, which, in my view, does not
go against the
test of ‘significantly the same as previously”.
[34]
In terms of Scenario G in the policy, a “
new post in
structure is a combination of several responsibilities which were
performed by several staff members within that department”.
Regarding “criteria for placement of staff” in new
posts, the “
position should
only
be
open to those staff members holding “several responsibilities.”
So, in order to qualify for placement in a new post in the
employment structure, the employee, in his or her substantive post
must have “held “several of the responsibilities”
included in the new post, i.e. in his substantive post he must
have
performed at least 50% of the functions contained in the new post.
[35]
According to Scenario H of the policy, where an employee’s
substantive post “
is not in the new structure”
,
the employee “
will be referred to the redeployment pool,
i.e. the staff member will be considered in terms of the functions
they performed and
not only the post that they held”
.
[36]
Employees had the right to appeal against decisions by the placement
committees and ask the appeal committee to place them
in a particular
permanent position.
[37]
According to the policy, employees who could not be placed or
redeployed were retrenched.
[38]
It is common cause that Applicant’s substantive post, namely
Director: Promotion of Access to Information and Planning,
did not
form part of the new employment structure. This meant that his case
fell under Scenario H. The placement committee thus
correctly decided
that he could not be placed and had to be referred to the
redeployment pool. Applicant, however, decided to appeal
against that
decision.
[39]
I agree with Van Heerden’s averment that the lodgement of the
appeal meant that Applicant could not be considered in
the
redeployment phase. Although there is no reference to the effect of
an appeal against the decision of the placement committees,
it is
common logic that any further implementation of that decision should
be stayed pending the appeal. That is the normal course
of events in
the case of appeals. The redeployment pool follows from the
placement. If an employee cannot be placed, i.e. put in
a permanent
position in the new structure, he goes to the redeployment pool where
the committee looks for a position for him. An
employee who is
unhappy about the decision of the placement committee appeals against
that decision and asks the appeal committee
to put him in a specific
permanent position. If such an employee, whilst the appeal is pending
goes into the redeployment pool
he might be placed into another
position, whilst the appeal committee is still considering whether he
should have been placed in
the said position. That would result in
the possibility of such employee being placed and redeployed in two
different positions
at the same time by two different committees.
[40]
In any event, Van Heerden and Prof Tyobeka testified that the posts
of Director: Transformation, Employment Equity and Diversity
and
Director: Employee/Labour Relations and Safety, Health and
Environment were new posts. In terms of Scenario G, which dealt
with
new posts, Applicant could not have been placed in or redeployed to
either because the posts did not constitute “a
combination
of several responsibilities which were performed”
by
Applicant in his substantive post and another employee from the same
department and there was not a 50% match between either
post and his
substantive post. Applicant, in his substantive post (and other jobs
he held at Respondent, even temporarily), had
not performed any of
the functions contained in the two posts.
[41]
Outside of the placement process, Applicant applied for the two
positions, namely Director: Transformation, Employment Equity
and
Diversity and the Director: Employee/Labour Relations and Safety,
Health and Environment.
[42]
Applicant claims that the only specific reason advanced by Respondent
for not considering Applicant for the post of Director:
Employee/Labour Relations and Safety, Health and Environment was that
he had shown a lack of objectivity in pursuing his own grievance
and
that Tlhabanelo deposed to this fact in an interim application to
this Court.
[43]
This submission is incorrect. In her affidavit, Tlhabanelo testified
that the main reason for the non-appointment of Applicant
lay in the
fact that he did not meet the advertised requirements for the posts,
namely a human resource and employment law specialist
with at least
five years’ experience in these fields at a managerial level.
It is convenient to note here that during the
trial Van Heerden
offered the same reasons for the non-appointment of Applicant. In her
affidavit, Tlhabanelo then went on to say
that it should be
further
noted that the Employee/Labour Relations post required a person
who will be objective and neutral in his or her dealings with
employees
and management but that Applicant had waged a bitter
vendetta against management, the VC and the Council.
[44]
In my view, Respondent’s main reason for not appointing
Applicant to either post was rationally connected to the advertised
requirements for the posts. Applicant contended that he qualified for
both posts because as campus director he managed employees
for 3
years, he had sat on a health and safety committee, had managed a
community centre from
1990 to 1994
and had been employed as an
education
officer by a trade union from
1988 to 1990
.
It is self-evident that these credentials fall abundantly short of
the minimum requirements of the posts. In any event, the outcome
of
the arbitration award established that Applicant
had
waged an
unfounded bitter vendetta against the Vice-Chancellor and is
antagonist and distrustful in his dealings with management
as
illustrated by his encounter with Dr Nevuthalu, and so not suited to
either post.
[45]
The other posts in issue, namely that of Presiding Officer, Strategic
Advisor to the Vice-Chancellor and Campus Director were
not in the
employment structure open to consideration by the placement
committee. The placement and redeployment policy was restricted
to
placement and redeployment to post levels 5 to 18 only - the posts of
Strategic Advisor and Presiding Officer were level 4 posts.
The post
of Campus Director no longer existed after the rationalisation
process since the functions contained in these posts were
absorbed by
the respective executive deans. After the merger, campuses became
faculty based and their management fell under the
executive deans of
the relevant faculties. The post of Presiding Officer did not
officially exist.
[46]
It is significant that the allegations raised in this trial in
respect of these posts and the post in Dr Nevuthalu’s
department were pertinently raised and fully ventilated with detailed
evidence at the arbitration referred to earlier on, and a
final
determination was made on these claims by the arbitrator. As
indicated earlier on, the arbitrator found no merit in the
allegations against Prof Tyobeka, Dr Nevuthalu and Respondent in
respect of these posts. In other words, Applicant’s claim
that
Prof Tyobeka and Dr Nevuthalu deliberately frustrated other attempts
to secure positions at Respondent was found to have no
merit
whatsoever.
[47]
Applicant contends that Prof Sebara attempted to mediate a settlement
in the dispute between Applicant and Prof Tyobeka and
that this
attempt was met with a rebuff from Dr Nevuthalu to the effect that if
Applicant was going to be retrenched he would have
to be retrenched.
According to Applicant that reaction warrants a finding that
Respondent’s management were determined to
get rid of him. The
actual evidence of both Prof Sebara and Dr Nevuthalu reveals that
Prof Sebara at a funeral, in effect asked
Dr Nevuthalu to take steps
to ensure that Respondent kept Applicant in Respondent’s
employment. In other words, Respondent’s
management was
effectively been asked to treat Applicant preferentially outside of
Respondent’s placement and appointment
policies negotiated with
the trade unions. The evidence also reveals that, contrary to
Applicant’s version, Dr Nevuthalu’s
response was that
Applicant cannot be treated differently to other employees and that
if the application of the placement and retrenchment
policies of
Respondent resulted in retrenchment, so be it. In my view, this was a
legitimate response and any agreement to the
suggestion would have
constituted an unfair labour practice against other employees on the
part of Respondent.
[48]
There is not a shred of even circumstantial evidence suggesting that
the placement committees had in mind the fact that Applicant
had
pursued a grievance against Prof Tyobeka or Prof Tyobeka’s
statement in the arbitration that Applicant’s accusations
against him had broken down the trust relationship between them
because in his view the accusations were serious and unfounded.
There
was also no evidence that the actual placement committee charged with
making proposals on the placement of Applicant –
the
administrative/support staff sub-committee - included members with a
special biased connection to Prof Tyobeka.
[49]
The composition of the placement committees was agreed between
Respondent and the unions. The standing members of the relevant
sub-committee (the administrative/support staff sub-committee)
consisted of Prof Molefe (Deputy Vice-Chancellor), executive deans,
an HR officer and members from representative trade unions. The
committee was thus a collective from a cross-section of Respondent,
which included members from the representative trade unions. The
minutes of the meetings actually indicate that the chair of the
committee, Prof Molefe, a Deputy Vice-Chancellor, was well-disposed
to Applicant in the meetings, and the arbitration award on
the
grievance reveals that Prof Molefe testified for Applicant in the
arbitration proceedings. It is significant that decisions
by the
committees were made by consensus, meaning that Applicant’s own
trade union, the first applicant in these proceedings,
agreed with
all the decisions made in respect of Applicant.
[50]
Applicant claimed that Respondent had determined to dismiss him
before the match and placement exercise. In this regard, he
relied on
a letter dated 6 December 2007, addressed to him from Prof Molefe and
singed by Dr Nevhutalu. Under his name, the word
“bus driver”
appears. The letter states that the “match and place committee
met on 4 December 2007 and after
having considered all alternatives,
a suitable redeployment option could not be secured and that he was
going to be retrenched.
Applicant emphasised that the letter was
signed by Dr Nevhutalu, with whom he had had an angry disagreement
during 2007.
[51]
During his testimony, Applicant conceded that that the letter was
never issued to him. It was pointed out to him that the minutes
of
the placement committee show that his placement was pertinently
discussed and determined. Moreover, the letter was not issued
by Dr
Nevhutalu who, in the ordinary course of his functions, had merely
signed letters issued by Prof Molefe, the same Prof Molefe
who
testified on behalf of Applicant at the arbitration and who,
according to the minutes of the placement meetings, was well disposed
to Applicant.
[52]
Applicant suggested that the timing of the dismissal was hastened and
manipulated to avoid Council dealing with Applicant’s
grievance. There is no evidence that indicates the placement
committees on their own or on instruction from Respondent manipulated
the placement calendar to hastily deal with Applicant’s matter.
Council dealt with the grievance by having it referred to
arbitration. The arbitration award did not oblige Council or Prof
Tyobeka to do anything which may have potentially prevented the
dismissal of Applicant.
[53]
Applicant argued that in terms of the Sithole Commission, his
retrenchment dispute should have been referred for special
conciliation.
There is nothing in the Sithole recommendations which
placed an obligation on Respondent to refer Applicant’s dispute
for
special conciliation and settle the dispute.
[54]
In light of all the above, the grievance played no role at all in the
fact that Applicant was not placed or redeployed to any
posts. He
would have been retrenched even if he had not lodged a grievance. His
retrenchment could not have been avoided by giving
him preferential
treatment in the two posts he applied for because his credentials
fell far short of the minimum requirements.
Regarding the other posts
mentioned, they did not exist or in terms of Respondent’s
standing rules had to be created by Council
or opened to other
applicants, including external applicants or Applicant by his conduct
made himself unavailable for consideration.
Order
[55]
In the premises I make the following order:
55.1
Applicant was dismissed due to Respondent’s operational
requirements.
55.2
Applicant’s dismissal by Respondent was substantively and
procedurally fair.
55.3
There is no order as to
costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For Applicant: Adv RG Beaton, SC,
instructed by Kedibone Molema Attorneys
For
Respondent: Adv H Gerber, instructed by Clarinda Kugel Attorneys
[1]
(1999) 20 ILJ 1718 (LAC) at para 32.
[2]
(2005) 26 ILJ 2153 (LAC).
[3]
(2012) 33 ILJ 2374 (LAC) at para 15.
[4]
(2006) 27 ILJ 1738 (LC) at 1748J-1749G.