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[2017] ZALCJHB 450
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Kommal and Another v South African Police Service and Others (JR1115/15) [2017] ZALCJHB 450 (5 December 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 1115/15
In
the matter between:
TEDDY
KOMMAL
First Applicant
POPCRU
Second Applicant
and
SOUTH
AFRICAN POLICE SERVICE
First Respondent
BRIGADIER
C M KOTZE
Second Respondent
ADV
E MAREE (
NO
)
Third Respondent
SAFETY
AND SECURITY
BARGAINING COUNCIL
Fourth Respondent
Heard
:
12 July 2016
Delivered
:
05 December 2017
Summary:
(Review – unfair labour practice – promotion –
internal candidate successful –
findings not unreasonable)
JUDGMENT
LAGRANGE
J
Background
[1]
The applicant in this matter has applied to review an arbitration
award which found that the failure to appoint him to the post
of
Commander: SAPS Academy Paarl: Division: Human Resource Development
at the level of Brigadier was not an unfair labour practice.
At the
time he applied for the position during May 2011 he was a Colonel in
the Human Resource Development Division. He was shortlisted
for the
post and obtained a score of 68.7% which placed him second out of
seven shortlisted candidates. The successful candidate
is the second
respondent, Brigadier Kotze (‘Kotze’) a white female, who
scored 75.1 % in the interview. The applicant
is an Indian male.
[2]
The late filing of this application was previously condoned.
The
arbitration award
[3]
The arbitrator wrote a very lengthy award in which he comprehensively
summarised the essential evidence of the parties.
[4]
In essence, the thrust of the evidence led by the applicant at the
arbitration was that:
4.1 The
second respondent’s academic qualifications did not include a
qualification in a management
course and accordingly she did not
qualify for the post.
4.2 A
member of the selection panel, General V A Nyalunga (‘Nyalunga’),
convened a meeting
to which the second respondent was invited because
“she needed to know what was happening at head office”.
Nyalunga
invited her to the meeting despite the fact that he knew she
had applied for the promotion and that he was a member of the
selection
panel.
4.3 The
short list of eight candidates was compiled out of 51 applications
and was reduced to the
final number in the meeting which lasted less
than an hour, which the applicant claims could never have been a
rational selection
in that time.
4.4 The
selection panel was not impartial.
4.5 In
terms of the National Instruction governing the appointment to levels
13 and 14, the procedure
is supposed to be based on the principles of
open competition, competency, objectivity and fairness and aimed at
creating a broadly
representative workforce taking into account the
race gender and disability composition of the South African
population. In this
regard there were no Indian males at the level of
Brig in the HRD division, whereas the panel misleadingly represented
to the national
Commissioner that there were two Indian Brigadiers in
the section and white males were overrepresented. In addition after
the second
respondent was appointed there were two white females at
that level but no Indian males where there should at least have been
one.
4.6
There was no motivation submitted by the HRD for the appointment as
required.
4.7 The
letter of motivation submitted by the chairperson of the selection
panel requesting deviation
from the employment equity targets of the
division was misleading in a number of respects.
4.8
Nyalunga, as Kotze’s line commander had a vested interest in
the matter and was named as
a referee by Kotze in her application,
but he did not declare the interest or recuse himself from the
selection panel.
4.9 The
panel favoured Kotze because she lived in Paarl and the questions of
the panel were specifically
about the Academy which favoured her
because of her inside knowledge.
4.10 On the basis of
equity considerations the applicant should have received more
favourable consideration than Kotze.
[5]
The thrust of the evidence led by the SAPS was to the effect that:
5.1
Nyalunga’s membership of the selection panel was by appointment
of the National Commissioner
and it was not unusual for a member of
the selection panel to consider applications by subordinates.
Moreover it was important
that members of the panel had a knowledge
of the duties the post would entail and the environment of the post.
5.2 The
three-person selection panel scored the applicants against three
different sets of criteria
namely:
5.2.1
Part A – qualifications, prior learning and relevant
experience.
5.2.2
Part B- After writing a draft test, a written appreciation and
psychometric tests on day
one of the selection process, candidates
were required to make a presentation on a scenario with their
solution and also participate
in a role-play involving crisis
management.
5.2.3
Part C -the last part of the assessment consisted on overall
performance of a candid during
the exercises taking into account how
they demonstrated in the practical exercise their ability to apply
their skills, experience
and qualifications. The two candidates were
assessed in this part with reference to two criteria, namely
knowledge and skills and
managerial ability.
5.3 The
respective overall scores of the panellists of the applicant and
Nyalunga, were 68,7 % and
75.1 % respectively. They can be broken
down further thus :
Respective scores by each
selection panellist of the applicant and Nyalunga
Part A: 1. Relevant
Qualifications; 2. Prior learning and development; 3. Relevant
Experience
Item
Applicant
Kotze
Nyalunga
Nomoyi
Mbekela
Nyalunga
Nomoyi
Mbekela
1.
9
9
9
7
7
7
2.
8
8
8
8
8
8
3.
8
8
8
8
8
8
Subtotal
25
25
25
23
23
23
Part B: 4. Draft test; 5
Written appreciation; 6. Presentation; 7. Role play; 8. Crisis
Management
4.
6
6
6
8
8
8
5.
5
5
5
7
7
7
6.
6
6
6
7
8
8
7.
6
6
6
8
8
8
8.
4
6
6
6
8
8
Subtotal
27
29
29
36
39
39
Part C: 9. Knowledge and
Skills; 10. Managerial ability.
9.
6
6
6
7
7
8
10.
6
6
7
7
7
7
Subtotal
12
12
13
14
14
15
Total
202
206
210
220
226
230
5.4 The
panel sought to get all races represented in the interviews and the
composition of the shortlist
reflected that most shortlisted
candidates were either black males or females followed by coloured,
white and Indian members.
5.5
Apart from the equity considerations, SAPS wanted to transform the
academy into a university and
were looking for candidates with a
strategy to do this by the following year which made performance a
consideration. Although Kotze
is white, she did satisfy the equity
gender criterion. Further she was able to immediately run with the
project and knew people
at the academy. Had they followed
considerations of equity alone, the panel would have chosen the
lowest scoring candidate.
5.6
Regarding the applicant’s purported Executive Development
Learning Programme (‘EDLP’)
qualification, the applicant
had not completed the third phase of that qualification which
required him to finalise his report.
The
arbitrator’s reasoning
[6]
After noting the principle that a degree of subjectivity can enter
the selection process and that a candidate who appears to
be better
qualified on paper does not necessarily mean that the promotion of
another candidate is unfair, the arbitrator identified
the central
complaint of the applicant as being that he was better qualified and
had more experience than the successful candidate
and accordingly
contended that in the absence of the employer providing satisfactory
reason for promoting Kotze, it was reasonable
to assume it had acted
in bad faith. The arbitrator identified the procedural and
substantive complaints of the applicant under
the following summary
headings:
6.1
Procedural Unfairness: (a) the department did not comply with
National Instructions; (b) questions
asked favoured Kotze; (c) he was
unfairly marked down; (d) records were not properly kept; (e) one of
the panel members, General
Nyalunga (‘Nyalunga’) was a
referee of Kotze and failed to sign a declaration of interest; (f)
the letter motivating
the appointment of Kotze contained incorrect or
false information; (g) the interviewing panel was not impartial and
did not reflect
the correct equity figures when making its report,
and (h) the shortlisting of candidates was capricious.
6.2
Substantive fairness: (a) his qualifications were better than Kotze;
(b) equity considerations
favoured him as an Indian male compared to
Kotze as a white female given the racial and gender composition of
the department, and
(c) he had more experience particularly in
management.
[7]
The arbitrator noted that the applicant had conceded that equity was
a factor that the panel was entitled to weigh up against
service
delivery. Further, there had been a motivation submitted because
Kotze’s promotion would not facilitate obtaining
equity
objectives. Consequently, the arbitrator concluded that the panel had
not ignored equity considerations.
[8]
The arbitrator accepted that because the applicant had a Master’s
degree he had been given a score of 9/10 by the panel
compared to
7/10 for Kotze. The fact that the panel acknowledged his higher
qualification demonstrated that the panel had not ignored
this
factor. As far as the additional training qualification is concerned,
the arbitrator accepted that at the time of the advertisement
neither
he nor Kotze had an EDLP qualification, but that Nyalunga had
completed hers by the time of the interviews whereas the
applicant
still had the last phase of the qualification to complete but he did
not advise the panel of this. He also conceded that
Kotze had done
particularly well in all three phases of the EDLP achieving the
accolade of “Overall Best Achiever”
and that he had not
amended his third phase research proposal despite being asked to. An
issue which arose in relation to the EDLP
qualification was that the
applicant had stated in his CV that he had completed it which led to
him being credited with points
for that.
[9]
The applicant’s training experience was at the Bishop Lavis
Academy, which Nyalunga testified was at a primary level providing
basic training and entry level programmes compared to Kotze’s
experience as Commander at the Paarl Academy, which was at
a tertiary
level. When it came to the practical tests, the arbitrator accepted
that the second respondent performed better in the
various exercises
such as the draft test, written appreciation, presentation, role-play
and crisis management.
[10]
The arbitrator further found that the applicant had conceded that it
was not improper of a referee such as Nyalunga to be part
of the
interview panel. Nyalunga had also not been tested on those issues
during cross-examination. The arbitrator accepted that
the evidence
showed that Nyalunga was suitably qualified to assess the written
appreciation exercise done by the shortlisted candidates.
Nyalunga
had also testified that it was necessary for panel members to have
knowledge of the requirements of the Academy post and
he and the
chairperson had that knowledge.
[11]
As far as the attendance of Kotze at a meeting, at the request of the
Nyalunga, on the same day the psychometric tests were
conducted, the
arbitrator was satisfied that her attendance at that meeting in no
way could have been said to have advantaged her
in some way in the
selection process.
[12]
On the question of whether the applicant was marked down on the
written appreciation, the arbitrator was of the view that the
applicant had dealt with the issues in vague and general terms,
whereas Kotze had been practical and to the point.
[13]
In support of his contention that the selection of shortlisted
candidates had been capricious, the applicant claimed that the
number
of candidates had been whittled down from 51 to 8 in a meeting that
lasted less than an hour, which he contended was impossible.
However,
the arbitrator noted this was not canvassed with Nyalunga and no
other evidence was adduced in support of the argument
that the
process must have been capricious or impossible.
[14]
In relation to the contention that the motivation letter by the panel
in support of Nyalunga’s promotion because it required
a
deviation from equity objectives, the applicant maintained that it
was inaccurate because it incorrectly stated equity figures
and
failed to mention a prior disciplinary infraction of Kotze. However,
he had earlier conceded in his evidence that the disciplinary
action
dated back to 1993 and concerned Kotze’s pregnancy, which at
the time was not permitted in terms of existing policies
and he
conceded that it was of no consequence or relevance to the position
they had applied for.
[15]
In conclusion, the arbitrator found that the applicant could not show
that he had objective qualities such as experience and
qualifications
which Kotze did not possess and therefore there was no further
explanation SAPS had to provide as to why he was
unsuccessful. The
motivation to promote Kotze was an acceptable one, despite the fact
that it required a deviation from the equity
policy, and the
applicant was unable to show that the employer had acted in bad
faith. Accordingly, the arbitrator concluded that
the applicant had
failed to show that his non-promotion amounted to an unfair labour
practice.
Grounds
of review
[16]
The applicant’s grounds
of review in many respects are little different from grounds of
appeal. It is important in this regard
to stress what is now a
well-established test a court must apply when evaluating an
arbitrator’s award. In
National
Union of Metalworkers of SA on behalf of Motloba v Johnson Controls
Automotive SA (Pty) Ltd & others
[1]
the LAC reaffirmed the current approach :
“
[38] Following the decision of
the Constitutional Court in
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
on the review test this court
provided further guidance on the test in a number of its decisions.
In
Head of Department of Education v Mofokeng & others
,
this court provided the following useful exposition on the test which
needs to be quoted in extenso:
‘
[30] The failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will usually
be an irregularity. However,
the Supreme Court of Appeal (the SCA) in
Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae) [(2013) 34 ILJ 2795
(SCA)]
and this court in
Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v Commission for Conciliation, Mediation &
Arbitration & others [(2014)
35 ILJ 943 (LAC)
], have held
that before such an irregularity will result in the setting aside of
the award, it must in addition reveal a misconception
of the true
enquiry or result in an unreasonable outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependent on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or
effect of the decision,
corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common
law, now codified and
mostly specified in s 6 of the Promotion of Administrative Justice
Act (PAJA); such as failing to apply the
mind, taking into account
irrelevant considerations, ignoring relevant considerations, acting
for an ulterior purpose, in bad faith,
arbitrarily or capriciously,
etc. The court must nonetheless still consider whether, apart from
the flawed reasons of or any irregularity
by the arbitrator, the
result could be reasonably reached in the light of the issues and the
evidence.
Moreover, judges of the Labour Court should keep in mind
that it is not only the reasonableness of the outcome which is
subject
to scrutiny. As the SCA held in Herholdt, the arbitrator must
not misconceive the enquiry or undertake the enquiry in a
misconceived
manner. There must be a fair trial of the issues
.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted s 145 of
the LRA, confining review to “defects”
as defined in s 145(2) being misconduct, gross irregularity,
exceeding powers
and improperly obtaining the award. Review is not
permissible on the same grounds that apply under PAJA. Mere errors of
fact or
law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning of the arbitrator,
evidenced
in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc must be
assessed
with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken the enquiry in the wrong
manner
or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness
should be of such an order (singularly or
cumulatively) as to result in a misconceived enquiry or a decision
which no reasonable
decision maker could reach on all the material
that was before him or her.
[33]
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the enquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute.
A material error of this
order would point to at least a prima facie unreasonable result. The
reviewing judge must then have regard
to the general nature of the
decision in issue; the range of relevant factors informing the
decision; the nature of the competing
interests impacted upon by the
decision; and then ask whether a reasonable equilibrium has been
struck in accordance with the objects
of the LRA.
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable. By the
same token, an
irregularity or error material to the determination of the dispute
may I constitute a misconception of the nature
of the enquiry so as
to lead to no fair trial of the issues, with the result that the
award may be set aside on that ground alone.
The arbitrator however
must be shown to have diverted from the correct path in the conduct
of the arbitration and as a result failed
to address the question
raised for determination.’ (Emphasis added.)”
[2]
In
what follows below only those grounds of review which were pursued
when the matter was argued have been considered.
First
Ground
[17]
Firstly, the applicants’ complains that the arbitrator did not
apply her mind to the most fundamental shortcoming in
the process of
appointing Kotze, namely that Kotze did not have the minimum
qualifications for the advertised post. The applicant
contends that
as Kotze did not have a degree in Management science, she did not
meet the “additional requirements”
in the advertisement
namely “NQF6 in Police Science/Law/Commercial or Management
Sciences plus at least 5 years’ experience
in related Human
Resource Development or Training Field”. He ridiculed the
attempt of Nyalunga to equate Kotze’s teaching
degree with a
management science degree on the basis that teaching required the
management of people.
[18]
SAPS argued that the so-called additional requirements were ones that
were over and above the generic minimum requirements
and that in
terms of national instruction for of 2010, members of the selection
panel
“…
must consider all
applications on the basis of-
a.
The inherent requirements and
core functions of the advertised post
;
b. The ability and potential of the
applicant to function in the post;
c. The status of every applicant
has provided for in the Class that Act, 1998 (act no. 55 of 1998),
and
d. The representativity of the
relevant division or province that the salary level that is
applicable to the post.
Factors that may be considered to
inform evaluation of the application according to the above
include
–
a. The experience gained in the field
of the post and whether the applicant meets the requirements for the
post as set out in the
advertisement of the post;
b.
Any relevant qualifications over
and above qualifications that of the minimum basic requirements as
stated in the advertisement
; and
c. The health of the applicant, if
good health is an inherent requirement for the post.”
(Emphasis
added)
SAPS
interprets the emphasised portions to mean that in considering
applications, the selection panel did not necessarily have to
consider qualifications over and above the core functional
requirements of the job. In describing the “Minimum
requirements”
for the post, the following was stated,
inter
alia
:
“
Applicants must: display
competency in the post-specific core functions of the advertised
posts; have a minimum period of three
(3) years proven appropriate
managerial experience; have an Executive Development Learning Program
(EDLP) or an applicable NQF
6 qualification or higher qualification,
unless otherwise specified….”
It
may be debatable whether or not the ‘additional requirements’
for specific posts were peremptory or not. If they
were peremptory,
then I tend to agree with the applicant that it seems to be untenable
stretch of the ordinary meaning of ‘management’
to equate
a degree in ‘management’ science with a teaching degree.
[19]
However, even if a degree in Management Science as an ‘additional
requirement’ was a peremptory one, the applicant
also has a
fundamental difficulty with being considered for appointment because
it transpired during the arbitration that he did
not have the EDLP
qualification at the time he was interviewed. The EDLP qualification
undoubtedly was a minimum requirement. Not
only had he not
obtained it at the time of the interview but he had misleadingly said
he had ‘successfully completed’
it in his CV, whereas
Kotze had said she was busy finalising her report and had
qualified at a high level by the time she
was interviewed.
Consequently, assuming the requirement of a Management Science was
also peremptory, it would not assist
the applicant in obtaining the
post because he also did not satisfy a minimum requirement for
consideration for the post. As such,
even if this ground of review
was a sound one, it would not assist him in his quest for relief on
account of his own disqualification
for consideration.
[20]
Despite this, I will briefly consider the other main grounds of
review.
Second
ground
[21]
Secondly, the applicant complains that the arbitrator did not deal
with SAPS’s alleged failure to apply the criteria
set out in
National Instructions 3 of 2005 and 4 of 2010 and completely ignored
this in her award. The real basis for this ground
of review is that,
SAPS could not provide the record of the assessment done on the
candidates and he contended that the failure
of the chairperson to
maintain the written record of all the proceedings of the selection
process contrary to Clause 7(2) (d),
constituted an irregularity
which undermined the fairness of the process.
[22]
Clearly, the absence of the complete record might be crucial in some
instances, but there was sufficient evidence of the scoring
of the
applicant and Kotze in the assessment process and other evidence of
Nyalunga for the arbitrator to consider the possible
procedural
irregularity and whether it gave rise to any unfairness. As things
stood, Kotze did far much better than Nyalunga in
the assessment
phase and arguably that would have been one of the most important
issues in determining the most suitable candidate.
Be that as it may,
in absence of a reason to believe the results of the assessment were
manipulated, the mere absence of the entire
record of the selection
process, does not necessarily raise an inference of procedural
unfairness.
Third
ground
[23]
Thirdly, the applicant contends that SAPS was obliged to apply equity
and representivity and had it done so he would have been
appointed.
The arbitrator failed to deal with this issue properly.
[24]
I am satisfied that there was
enough evidence before the arbitrator to the effect that if equity
targets had been applied rigidly,
the applicant would not necessarily
have benefitted from that. Moreover, I agree that this type of attack
can only have a prospect
of succeeding if the applicant had based his
claim on unfair discrimination in the first place. In this regard,
see
Dudley v City of Cape
Town
[3]
,
where the LAC decided that the enforcement of employment equity
policies had to first be dealt with under the provisions of chapter
V
of the
Employment Equity Act, 55 of 1998
. In this instance, if the
applicant wanted to argue in addition that his non-appointment was
unfair discrimination he did not seek
to challenge it on that basis
and neither the arbitrator could deal with that under his unfair
labour practice claim, nor can it
be introduced indirectly as an
issue on review.
Fourth
ground
[25]
The arbitrator failed to consider any of the evidence indicating that
Kotze appear to be the favoured candidate and that the
panel was
going to appoint her irrespective of her shortcomings in her
qualifications and despite the existence of more suitable
candidates.
[26]
It is not correct that the arbitrator did not consider the evidence
the applicant wished to rely on to support his contention
that the
process was pre-determined. Thus the arbitrator carefully evaluate
the evidence of Colonel Ramlall and the fact that Kotze
had been
working at the Paarl Academy already as well as the allegation that
it was improper of Nyalunga to sit on the panel.
[27]
It is understandable the applicant may have felt that Kotze was
favoured for the position, but that is often the case where
a person
has been working in the institution where the appointment will be
made and is well known to those who are best placed
to consider the
suitability of candidates for appointment. This will be even more so
where the person in question already acted
in the post. That fact
alone also gives rise in many instances to an expectation that they
ought to get it and when they do not
they are the ones claiming they
were unfairly overlooked. It is also not insignificant that the
post under consideration
was a very unique one, being an appointment
to manage an academy serving the training needs of senior members of
SAPS. It is not
unreasonable to think that the candidate with working
knowledge of that academy would unavoidably have a natural advantage
over
candidates applying from outside the institution. Similarly,
questions dictated by the requirements of the post, may
understandably
be more easily addressed by someone with inside
knowledge of the institution than a candidate without that advantage.
However,
it would be wrong to deem any such advantages unfair,
without demonstrable evidence of specific assistance being given to
an ‘insider
to try and ensure they succeed.
Conclusion
[28]
In light of the reasoning above, I am not satisfied that the
conclusion the arbitrator came to was one no reasonable arbitrator
could have reached on the evidence before her, and accordingly the
review application must fail
Order
[1]
The review application is dismissed.
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
Edwards instructed by
Makgahlela
Mashaba
Attorneys
RESPONDENT:
S
B Nhlapho instructed by the
State
Attorney, Johannesburg.
[1]
(2017) 38 ILJ 1626 (LAC)
[2]
At 1638-9.
[3]
(2008) 29
ILJ
2685 (LAC) at 2708A-B