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[2017] ZALCJHB 269
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Maponya v Ledwaba and Others (JR2449/16) [2017] ZALCJHB 269 (25 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR 2449/16
In
the matter between:
TSHEPO
GABRIEL
MAPONYA
Applicant
and
NELSON
MATSOBANE LEDWABA (cited in his capacity as
Commissioner
of the South African Local Government
bargaining
Council)
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
POLOKWANE
LOCAL
MUNICIPALITY
Third
Respondent
Heard:
30 May 2017
Delivered:
25 July 2017
Summary:
Review application-Arbitration records must be made available if the
claim is that a commissioner made an error of facts-
Application
dismissed.
JUDGMENT
MABASO
AJ
Introduction
and the parties
[1]
An applicant who approaches a court, alleging that a Commissioner
committed reviewable irregularity by failing to take into
account
information properly placed before him, such applicant is expected to
provide that court with such information for the
determination of the
impact of such irregularity. Failure to do so may lead to that court
being unable to decide if the alleged
defect resulted to an
unreasonable outcome, taking into account that the totality of
material presented at the arbitration are
crucial in such inquiry.
[2]
In preparation for the hearing herein, I noticed that in paragraph 1
of the arbitration award the Commissioner states that the
arbitration
proceedings proceeded for 6 days. However, there are no transcribed
records in the court file
[1]
,
only the handwritten notes of the Commissioner were made available.
Unfortunately, the notes were illegible.
[2]
I then directed the registrar to issue a directive to the parties
advising them that they should file typed notes at least
three
days before the set down date, if they intended to rely on the
Commissioner’s notes. However, the applicant’s
legal
representative indicated that they did not intend relying on the
Commissioner’s notes, hence, they were not typed.
[3]
This is an application to review and set aside the arbitration award
issued by the first respondent under the second respondent’s
case number LPD 121303 dated 3 November 2016, and be replaced with an
order that the Municipality committed an unfair labour practice
in
terms of section 186(2)(b) of the Labour Relations Act
[3]
,
in that the applicant “
is
entitled to maximum compensation
”,
alternatively that the applicant “
be
appointed as if he was in the position of Deputy Chief Financial
Officer (the Deputy CFO) in terms of section 158 (1) (a) (iii)”
;
[4]
alternatively, refer the matter back to the second respondent for
hearing
de
novo
before a different Commissioner, and order costs against any party
opposing this application.
[4]
The Applicant is Tshepiso Gabriel Maponya (the Applicant), the first
respondent is Commissioner Nelson Matsobane Ledwaba (the
Commissioner), the second respondent is South African Local
Government Bargaining Council (SALGBC), and the third respondent is
the Polokwane Local Municipality (the Municipality). The Commissioner
and SALGBC took no part in this review application; only
the
Municipality did oppose it.
Relevant
background
[5]
In 2011 the Applicant joined the Municipality as its Manager within
Financial Services, Business Unit (the first position),
later that
year, due to operational requirements, this position was made
obsolete. He was then appointed as a Manager in Expenditure
(the
second position) without changes to his remuneration. Precipitating
this change, he was consulted by the Municipality, and
was given
three choices of positions to choose from; he opted for the second
position.
[6]
In terms of the letter that was issued to the Applicant on or about
September 2011, he was advised,
inter
alia
,
that “
You
are requested to indicate in writing whether you accept the placement
or no, and submit or fax the letter to the attention of
HR
manager
…”
[5]
and the effective date of this amendment to his contract of
employment was 1 September 2012 - almost a year later. The Applicant
acknowledged receipt of this letter. In the papers, before me, there
is no indication that the Applicant presented evidence before
the
Commissioner to reject this change. Instead, the Applicant asserts
that this change took place in September 2012 but, the status,
function, and the responsibilities were substandard to those of the
first position.The Municipality asserts that both the first
and the
second positions were similar , and were managerial positions. The
Applicant in his replying affidavit states that he “
was
forced to choose from the available positions having his position
[the first position] being abolished with no other alternative.”
[7]
In 2013 the Applicant was appointed as an Acting Chief Financial
Officer (the Acting CFO) of the Municipality. During his stint,
another review of the organizational structure of the
Municipality took place, and the Applicant was part of it, and
recommendations
were made, Whereinto the Applicant recommended to
the Municipality that a position of Deputy Chief Financial Officer
(Deputy
CFO) be created. In the replying affidavit, the Applicant
confirms this and in giving reasons behind his recommendation, he
says
“
The review in 2013 was not
considered to be another review but rather an attempt to rectify the
mistakes made in 2011. [He] made
certain recommendations to assist in
the rectification of the errors”.
Without the arbitration records, as this assertion is made in the
replying affidavit, I am unable to verify if this was properly
placed
before the Commissioner. By implications, the Applicant acknowledged
that the Municipality declared the first position redundant
in 2011,
which was his original position, and when he was given an opportunity
of being an Acting CFO, he recreated the first position
and gave it a
different name.
[8]
Subsequent to the recommendations by the Applicant, the Municipality
created and advertised the Deputy CFO position. The Applicant
was one
of the people who applied and interviewed for this post. However, in
terms of the scoring sheet of the interview panel,
one Ms T Muelelwa,
and one Mr Makgata scored 138 and 128 respectively, whereas the
Applicant scored 106, meaning the Applicant
was not the preferred
candidate.
[9]
As Ms Muelelwa was the first preferred candidate, she was offered the
post, however, for whatever reason she did not accept
it. Then, the
second preferred candidate, Mr Makgata, was approached, and he
accepted the offer.
[10]
According to the referral submitted to SALGBC, dated 11 December
2013, the dispute arose on 5 November 2013 - more than two
years
after the Applicant was issued with a letter amending his employment
contract with the Municipality, under summary
of the facts of
the dispute, the Applicant stated that the issue was about being
“
demoted
from position unfairly and not promoted to applied position
”
and under the desired outcome it is written “
reinstatement
to original position/promotion to deputy CFO
”.
[6]
Clearly this points that the Applicant wanted to be placed in the
reinvented position. The Applicant was now challenging his
appointment
to the second position from the first position, and
further saying Mr Makgata should not have been appointed, and that he
is the
one who should have been appointed to the position that he
recreated when he was the Acting CFO.
[7]
The
arbitration award
[11]
In the arbitration award, which is the subject of this application,
the Commissioner under common cause facts recorded,
inter
alia
, that the Applicant was no longer an
employee of the Municipality as he was dismissed on 30 April 2015 and
the dispute of dismissal
was declared and subsequently dismissed,
meaning the recourse of reinstatement was now not apposite.
[12]
The Commissioner further records that the Municipality had said the
issue of the alleged demotion, which took place in 2011,
was not
properly before him as there was no condonation application
thereof.
The Commissioner dismissed this
point
in limine
. As there is no counter review in
that respect, I cannot decide as to whether he was right or wrong.
None
appointment issue
[13]
It is clear that the Commissioner was presented with the ratings of
the interviews which recorded that Mr Makgatla scored more
than the
Applicant during the interview, and was the second preferred
candidate for the position of Deputy CFO. According to the
Commissioner, the Applicant had no chance of being appointed to this
position, as he did not impress the interview panel, in reaching
this
conclusion the Commissioner states that,
“
The applicant did not
dispute the fact that such position was newly created hence it was
openly contested after it was advertised.
The applicant further did
not dispute the respondent’s submission that on his erstwhile
position there were no managers reporting
directly to him. He further
did not challenge the fact that the current of organogram has about
four managers reporting directly
to the deputy CFO
.”
[8]
Demotion
issue
[14]
The Commissioner under issues in dispute stated,
inter
alia
, that the Applicant’s concern was
about the reduction of his duties and responsibilities and alleged
that this negatively
affected his dignity. In conclusion, he made,
inter alia
, the
following findings:
“…
There wasn’t
any kind of evidence tendered in respect of this aspect neither did
the applicant refute the fact that both position
were at Level 01…”
The
Commissioner further concluded that the Applicant voluntary accepted
the second position.
Grounds
for review
[15]
The Applicant submitted that the following was correctly placed
before the Commissioner: that the first position was declared
redundant and the “heads of argument” were
presented during the arbitration, dealing with differences regarding
the duties and responsibilities of the first position confirms that
the Deputy CFO position was created and advertised following
his
recommendation when he was the Acting CFO.
This
position was indeed created and advertised. Thereafter, he applied,
was shortlisted and interviewed. The recommendations by
the interview
panel opted to recommend to the Municipality, based on their
respective performance, for the appointment of Ms Maulelwa
and/or Mr
Makgata into the position of Deputy CFO. There were several
similarities between these positions.
[16]
After setting out the above, the Applicant proceeds to submit that
“
the
arbitration award is wrong in fact and in law, and irregularly
arrived at and cannot be justifiable, on an objective basis and
that
in fact and law.”
Further that, is one that a reasonable decision maker could not have
arrived at based on the circumstances,
[9]
in that,
16.1 he failed to take
into account several differences between the first and the second
positions, that the position of Deputy
CFO was created and it has
similarities with the first position. In all of this, the Applicant
refers to the “heads of argument”
that were submitted to
the Commissioner.
[10]
16.2 that he failed to
take into consideration the report from the director-cooperate and
shared services to the creation of the
Deputy CFO position.
16.3 that he failed to
apply his mind to the facts in that demotion properly does not only
require the financial loss of benefit,
et cetera.
16.4 that he was
suitably qualified for the Deputy CFO position as he acted to this
position before without “compensation”.
Applicable
principles and application thereof
[17]
Do I have a benefit of “all the material evidence” that
was before the Commissioner? If the answer to this is ‘no’,
the next question would be how will I decide the reasonableness of
the award. It is trite that an applicant in a review application,
motion proceedings, has to make out his case in the papers. The rules
of this Court allow a party to deliver a founding affidavit
and a
supplementary affidavit after receiving the records if he wishes to
do so. That is when an applicant may make out his
prima
facie
case.
[18]
In a review application, an applicant has to present a case which
would show that there is an irregularity on the part of the
Commissioner and such irregularity has prevented him from having a
fair trial of issues. Not all irregularities will amount to
the
setting aside of an award.
[11]
The Supreme Court of Appeal in the matter of
Heroldt
v Nedbank Ltd
[12]
held that,
“
A review of a CCMA award is
permissible if the defect in the proceedings falls within one of the
grounds in s145(2) (a) of the LRA.
For a defect in the conduct of the
proceedings to amount to a gross irregularity as contemplated by
s145(2)(a)(ii), …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.”
[13]
(Own
emphasis)
[19]
The reviewing court has to remind itself to look at what was before
the Commissioner to determine as to whether an alleged
irregularity
has led to the award to be one that a reasonable decision-maker could
not have made. Even if the reviewing court does
not agree with the
Commissioner’s conclusion, it cannot willy-nilly set it aside.
I am aware that the test for review is
unlike an appeal, that
sometimes an award may be reviewed if the conclusion is either
entirely disconnected with the evidence that
was properly presented
before the Commissioner or is unsupported by evidence properly
presented before the Commissioner and/or
is based on
speculations.
[14]
However, I
can only be in a position to know about this if all the evidence
presented before the Commissioner is before me.
[20]
In this matter the Applicant neither delivered a supplementary
affidavit nor records showing how the evidence was tendered
in
support of the documents that have been submitted herein. The reason
for the latter is stated in paragraph 3 above. Under the
circumstances only limited to the founding affidavit, the award and
the “heads of argument” which the Applicant asserts
that
they were not taken into account by the Commissioner. Therefore, any
dispute of fact herein has to be resolved based on the
facts relied
upon by the Municipality, together with any facts relied upon by the
Applicant which is admitted by the Applicant.
[15]
[21]
Based on the above, it will not be achievable for me to precisely
determine what transpired during the arbitration, and
further
taking into account the principle in
Heroldt
and
Fidelity Cash Management Services,
which requires that a reviewing court has to take into account the
totality of evidence that was presented before the arbitrator,
clearly, the applicant should have at least submitted written
submissions by the Municipality and when I invited him as to why
he
did not deliver them his answer was that the Municipality should have
submitted same.
[22]
I proceed to look at the limited information that is before me. In
the respect of the ground that the Commissioner failed to
apply his
mind to the facts and the law relating to unfair labour practice in
that there were several differences between the positions,
the first
and second ones , it is evident from there that the positions were
similar, and they were all at post level 1 as per
Annexure NKR
12 and NKR13 of the founding affidavit.The Municipality and the award
dictate so.
Therefore without having the benefit
of the records to detect how was the evidence presented, if any, or
complete argument by both
parties presented if the arbitration was
dealt with on papers. Under these circumstances, I am inclined to
accept the averments
of the Municipality which are on par with the
Commissioner’s findings.
[23]
In respect of the submission by the Applicant that he was demoted,
referring to 2011, and that this was done without his consent,
I am
inclined to accept what the Municipality avered to in that he was
requested to choose a position which he would prefer among
the three
that were offered to him, which he chose the second position.
I have also taken into account that the recommendation
which the Applicant was part of, confirms that back in 2011 there was
a need
for restructuring as it says “
the
review was done taking into account operational requirements and
affordability of the institution
.”
[24]
Therefore, under those circumstances, it is clear that there was a
need back in 2011 to move the Applicant to a different position.
As I
have indicated that there are no records in this matter, I take note
that the Commissioner did deal with this aspect, as stated
in
paragraph 14 above. The Commissioner concluded in this way, after he
had indicated the concern of the Applicant relating
to the
duties and responsibilities. Based on that, I am of the view that the
Commissioner did apply his mind to the facts before
him. This ground
of review fails.
[26]
The ground that the Commissioner committed an error of law in respect
of the understanding of the definition of “unfair
demotion,”
it is evident in the award that the Commissioner understood this
defintion. Firstly before it could be said that
an act is unfair
therein, the first question had to be determined was whether any act
of demotion took place. If the answer to
the latter was ‘no’,
therefore the determination of unfairness was to be absurd. The
Commissioner ruled that there
was no demotion, by this it ended the
inquiry. This ground of review also fails.
[27]
As to whether the Commissioner failed to take into account the job
descriptions of the first position and Deputy CFO, and that
the
Applicant was suitably qualified, as he had acted previously in that
position. The Commissioner ruled that such position was
newly
created, advertised and the applicant had his opportunity to impress
the interview panel and was interviewed, but he failed
to impress
them, therefore, under these circumstances, the referral was
justifiably dismissed. Again, this ground has no merits.
[28]
Therefore,I conclude that the Applicant’s review application
should be dismissed.I see no reason why costs should not
follow the
results, as both parties during argument emphatically asked for it.
[29]
Under the circumstances, the following order is made:
Order
1.
The review application is dismissed.
2.
The application in terms of
section 158(a)(iii)
of the
Labour Relations Act 66 of 1995
is dismissed.
3.
The applicant to pay the costs.
_____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Higgs
Instructed
by: Higgs attorneys.
For
the Respondents: Advocate Mushet
Instructed
by: Lebea & Associates
[1]
Paginated index: page 69.
[2]
Records: page 11-50.
[3]
66 of 1995, as amended. (the Act)
[4]
This prayer is wrong in law and taking into account what I have said
in paragraph 11.
[5]
Paginated index: page 55.
[6]
Paginated index: pages 52 and 53.
[8]
Paginated index: Page 19.
[9]
Paginated index (supporting affidavit): page 10, at para 6.4.
[10]
Paginated index(supporting affidavit): page 10, at para 7.2, page
11, at paras 7.6, 7.7.
[11]
Mckenzie v Basha
1951 (3) SA 783
(N), at 786H: Such a total want of
judicial capacity would surely amount to misconduct. It is true that
this Court in Young’s
Estate v. Estate Young,
1917 N.P.D. 244
at p. 254, applied to the report of a referee appointed by the Court
under
Part III
of Act 24 of 1898
the
test of whether the conclusions were such as a reasonable man could
not properly arrive at, and the same test was applied
in Chaffer and Tassie v. Richards,
26 N.L.R. 207.
But sec. 25 of the
Act provides that the report of a special referee or arbitrator
appointed by the Court shall be equivalent
to the verdict of a jury,
and there is no such provision in regard to ordinary submissions by
agreement such as the submission
in this case. The tests applicable
to the verdict of a jury thus apply only to the reports of referees
and arbitrators appointed
by the Court under Part III of the Act and
not to awards coming under Part II.
A
party attacking an award of the latter sort, such as the award in
the present case, will have to prove, not only that there
is no
evidence to support it and that no reasonable man could properly
have made it, but also that the lack of evidence is so
glaring that
misconduct on the part of the arbitrator ought properly to be
inferred therefrom
.
(Own emphasis)
[12]
[2013] 11 BLLR 1074
(SCA) at para 25.
[13]
Id, para 12, See also
Fidelity
Cash Management Service v Commission for Conciliation, Mediation
and
Arbitration
and
others (2008) 29 ILJ 964
(LAC)
, at para 103 where
it was held that “...Whether or not an arbitration award or
decision or finding of a CCMA commissioner
is reasonable must be
determined objectively with due regard to
all
the evidence
that
was before the commissioner and what the issues were that were
before him or her. There is no reason why an arbitration
award or a
finding or decision that, viewed objectively, is reasonable should
be held to be unreasonable and set aside simply
because the
commissioner failed to identify good reasons that existed which
could demonstrate the reasonableness of the decision
or finding or
arbitration award.(Own emphasis)
[14]
Herhodlt
supra,
at para 13.
[15]
See .
Plascon-Evans Paints
Limited v Van Riebeeck Paints (Proprietary Limited)
[1984] ZASCA 51.