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[2017] ZALCJHB 502
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Pillay v Commissioner of South African Police Service and Others (JR2386/15, J323/16) [2017] ZALCJHB 502 (6 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 2801/2012
In
the matter between
COLONEL
I B PILLAY
Applicant
and
COMMISSIONER
OF SA POLICE SERVICE
First Respondent
SAFETY
& SECURITY SECTORAL
BARGAINING
COUNCIL (SSSBC)
Second Respondent
FJ
VAN DER MERWE
N.
O
Third Respondent
M
A
MAKHELE
Fourth Respondent
Heard
on:
06 June 2017
Delivered
on: 06
December 2017
Summary:
[Review application is dismissed-No order as to costs].
JUDGMENT
MABASO
AJ
Introduction
[1]
The applicant is Colonel Inbanathan Bob Pillay (the
applicant), the first respondent is the Commissioner of the South
African Police
Service (the SAPS), the second respondent is Safety
and Security Sectoral Bargaining Council (the Bargaining Council),
the third
respondent is Advocate FJ van der Merwe (the arbitrator)
and the fourth respondent is Brigadier M A Makhele (the fourth
respondent).
[2]
The applicant approached
this Court in terms of section 145 of the Labour Relations Act
[1]
(LRA) to review and set aside paragraph 27 of the arbitration award
issued by the arbitrator under the Bargaining Council case
number
PSSS S50 – 11/12 wherein the arbitrator ruled that,
“
SAPS
is ordered to pay compensation to [the applicant ] in an amount equal
to what lastmentioned would have earned over a 3 month
period,
calculated on the basis of his present gross monthly
remuneration”
.
[2]
To be replaced with an order in the
following terms,
“
2.
The SAPS is ordered to promote the applicant in a post on the same
level and rank as that occupied by the fourth respondent,
retrospectively from 1 September 2011
”
[3]
Relevant
Background
[3]
The genesis of this matter was that the applicant, “an Indian
male” in terms of Employment Equity Act
[4]
(the EEA) is classified as a black person
[5]
,
employed by the SAPS as a police officer. In 2011 he applied for an
advertised post of Provincial Head: Criminal Record and Crime
Scene
Management, Division Forensic Services (the post). Four candidates
were shortlisted for this position, including the fourth
respondent,
however, the applicant was not shortlisted. Three of the shortlisted
candidates were Colonels Mokone, Matjeng (both
black African
females), and Colonel Lembrechts, a white male. Subsequently, the
fourth respondent was appointed to the post.
[4]
Aggrieved by this outcome, the applicant proceeded to declare an
unfair labour practice
[6]
dispute against the SAPS before the Bargaining Council. Following the
non-resolution of the dispute during conciliation, it proceeded
to
arbitration whereby the arbitrator was appointed to arbitrate it.
[7]
[5]
Before the arbitrator, in an opening statement it was submitted on
behalf of the applicant that he was not shortlisted despite
having
both the relevant experience and qualifications, and “
[t]he
four people who were shortlisted, either did not have the necessary
experience or did not have the necessary qualification
for the
specific position”
[8]
,
and that the whole process was flawed as there was no panelist at the
meetings. The parties had submitted pre-arbitration minutes
wherein
they agreed that the arbitrator was required to decide as to “
whether
[the SAPS] committed an ALP
[9]
by not shortlisting and appointing [the applicant] into the post in
question”.
[10]
In respect of relief
claimed by the applicant, the pre-arbitration minutes provide that,
“
[A]ppointment
retrospective to date of appointment of the successful candidate to
the rank of Brigadier at salary level 13(incl
of all benefits)”
[11]
[6]
Mr Van Rensburg, on behalf of the SAPS, submitted in his opening
statement that the non-shortlisting of the applicant was based
on
equity figures in the Free State province.
[12]
[7]
The SAPS presented evidence through General Tsietsi Khunou (General
Khunou). In summary, his evidence was that: he was part
of the
selection panel that was responsible for the shortlisting of the
candidates for the post, and his role was that of a representative
from the Division in Forensic Services. He placed on record that the
recruitment specification for the post was binary, namely
minimum
requirements such as three years’ experience and qualifications
(minimum requirements), and equity as black females
were
underrepresented in the province (equity requirements). The selection
panel consisted of Major-General Sithole and five other
members and
meetings were held.
[13]
In amplifying the equity requirement, his evidence in chief is
captured in the transcribed records, thus:
“
MR
KHUNOU: and according to the, under the presentation, the applicant
names there was zero, we did not look at them, and in terms
of
coloured it was zero underrepresentation, the whites there were two …
MR VAN RENSBURG: Okay, what about
Indian males?
MR KHUNOU: and then African females it
was minus 6 which was under-representation.
MR
VAN RENSBURG: Yes.
MR KHUNOU: And then Indian males,
Indian males it was zero according to the equity of the province.
MR VAN RENSBURG: Okay, so what
did you say to Arsenal, what does it mean? if you had to shortlist
or appoint an Indian
made would that have actually enhanced your
equity in the province or not?
MR
KHUNOU: well, it could not have enhanced equity in terms of the
figures which were presented
.”
[14]
[8]
I interpose and mention that according to the transcribed records,
the above evidence was never disputed by the applicant, and
he did
not testify during the arbitration. This missed opportunity to
testify means that the evidence, in respect of the equity
requirements which was part of the criteria used for the shortlisting
and subsequent appointment of the fourth respondent, remained
the
only evidence properly placed before the arbitrator.
[15]
The Labour Appeal Court referred with approval in
First
Garment Rental (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[16]
and in
The President
of the RSA and others v South African Rugby Football Union and
Others
[17]
where the Court held as follows regarding a duty to cross-examine:
“
[61]
The institution of cross-examination not
only constitutes a right, it also imposes certain obligations.
As a
general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point,
to direct
the witness's attention to the fact by questions put in
cross-examination showing that the imputation is intended to
be made
and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness
and of defending
his or her character.
If
a point in dispute is left unchallenged in cross-examination, the
party calling the witness is entitled to assume that the unchallenged
witness's testimony is accepted as correct.
This rule was enunciated by the House of Lords in Browne v Dunn and
has been adopted and consistently followed by our courts”
(Own
emphasis)
[9]
During cross-examination, General Khunou confirmed that the applicant
met the minimum requirements of the post. There were holes
that were
poked in the respect of whether the shortlisted candidates (only
black females) met the minimum requirements. However,
in respect of
Colonel Lambrechts (a white male and one of those who were
shortlisted), Mr Kruger on behalf of the applicant put
it to General
Khunou as follows:
“
MR
KRUGER: Mr Lambrechts, like Colonel Pillay, complied with all
the requirements for the job.
[MR
KHUNOU: That is true].
[18]
[10]
General Khunou further confirmed that Colonel Lambrechts was acting
in the same post, meaning he had more advantage than that
of the
applicant. Despite meeting all the minimum requirements, the only
disadvantage about both the applicant and Colonel Lambrechts
was the
issue of employment equity as mentioned above, and the recruitment
process was followed. No evidence that was tendered
by the applicant
to dispute this testimony.
Grounds
for the review
[11]
In the founding affidavit, the applicant, after recapping what the
arbitrator has found in the respect of the substantiveness
of the
alleged unfair labour dispute, for example, in finding that he could
not conclude that if the applicant had been shortlisted
and
interviewed he would have necessarily been appointed as compared to
one of the candidates, Colonel Lambrechts, who was an excellent
candidate or any of the candidates “on the long list”.
Meaning that there was no certainty on a balance of probabilities
that he would have been appointed to this position. The applicant
alleges that the arbitrator committed gross irregularity
alternatively
exceeded his powers for the following reasons
:
“
[1]
[He] was overlooked for promotion in circumstances where [he]
possessed the necessary objective
attributes, including the requisite
experience and qualification, which the person who was promoted did
not possess.
(Point 1)
[2]
The SAPS advanced no acceptable reason for my exclusion from the
shortlist, and it
appeared that it arbitrary decided to shortlist
three African females with no intention to appoint one of them.
(Point
2)
[3]
The arbitrator, once he found that the SAPS had acted unprocedurally
and/or in bad
faith, should have found that the intention of the SAPS
was not to appoint Lambrechts. In consequence, he should have held
that
it was manifestly obviously that, but for the unfair labour
practice, I would have been shortlisted and to the exclusion of
Lambrechts,
that I would have been promoted.
(Point 3)
[4]
The arbitrator should have ordered the SAPS to promote [him]
alternatively appoint
me in a post on the same level and rank as
that occupied by the fourth respondent, retrospectively from 1
September 2011.
(
Point 4)
[5]
The arbitrator, in the alternative, having found that in appointing
the fourth respondent
the SAPS exercised its discretion capriciously,
or that the decision was taken on the wrong principle or in biased
manner, should
have set aside the appointment of the fourth
respondent and ordered the SAPS to repeat the entire selection
process afresh.
(Point 5)
[6]
The compensation ordered by the arbitrator in my favour can never
undo the future
loss I stand to suffer as a result of the unfair
conduct of the SAPS. (
Point 6)
”
Principle
and application thereof
[12]
This Court is required to apply the test as introduced by the
Constitutional Court,
[19]
in a review application of this nature which is whether the decision
that was reached by the arbitrator was one that a reasonable
decision-maker could not have reached, taking into account the
totality of evidence that was properly presented before the
arbitrator.
[13]
In deciding such issue, this Court has to remind itself that
commissioners are required to decide issues that are in dispute
between the parties as the Constitutional Court, in the matter of
Cusa
v
Tao Ying Metal Industries
and Others,
[20]
held that,
“
A
commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done by
ascertaining
the
real dispute between the parties
.
In deciding what the real dispute between the parties is, a
commissioner is not necessarily bound by what the legal
representatives
say the dispute is. The labels that parties attach to
a dispute cannot change its underlying nature. A commissioner is
required
to take all the facts into consideration including
the
description of the nature of the dispute
,
the outcome
requested
by
the union and
the
evidence presented during the arbitration
…”
(Own
emphasis)
[14]
A party bringing a review application before this Court based on
gross irregularity, is required to show that such irregularity
has
led to him not getting a fair trial of issues, that were required to
be decided by an arbitrator, in order for the arbitration
award
and/or part thereof to be reviewed and set aside,
[21]
as I have referred above in the case of
Tao
Ying
that an arbitrator has
to determine the real dispute between the parties.
[15]
I deal with the grounds of review as pleaded by the applicant
hereunder.
[16]
POINTS 1, 2 and 3: It was common cause between the parties that the
applicant had the necessary experience and qualifications
(minimum
requirements), however, the SAPS presented evidence that the reason
for the shortlisting of the three black females was
to balance the
equity figures, and this was never seriously disputed during
cross-examination. And the issue of equity figures
was the reason
that was provided by the SAPS from the beginning and the applicant
did not suggest otherwise. The arbitrator, in
dealing with this
aspect, held that:
“
Even
if I were to accept that he was a strong candidate, I cannot conclude
that that panel , or any other panel for that matter,
would necessary
have selected the applicant over Lambrechts(or anyone else on the
long list).
Both
Indian males and white males were in no specific need of being better
represented.
The fact that White males were over-represented by 2, does not
necessarily mean that a panel would rather have selected the
applicant
where Indian males were already on target or at an
ideal level.This would call for speculation…”
(Own
emphasis)
[22]
[17]
One has to take into account that the arbitrator’s conclusion
is in line with the fact that there was no evidence presented
by the
applicant to gainsay the testimony by General Khunou.
[18]
POINT 4: regarding the ground that the arbitrator should have made an
order that the SAPS promote the applicant, alternatively
appoint him
in a post on the similar level as the one occupied by the incumbent.
This point has no evidential weight taking into
account that as much
as the applicant had a burden to adduce evidence that the SAPS should
have looked at an alternative post,
he tendered no such evidence ,
therefore, this point fails.
[19]
POINT 5: the point that the arbitrator should have set aside the
appointment of the fourth respondent. It is my view that the
arbitrator would have exceeded his powers by doing this and would
have decided something that he had not been asked to do taking
into
account that the pre-arbitration minutes were specific in
respect of the relief sought, as mentioned above, the arbitrator
was
not asked to declare the appointment of Brigadier Makhele invalid or
set it aside and he could not have done so
mero motu
, as the
pre-arbitration minutes are an agreement between the parties in a
dispute from which an arbitrator cannot deviate from
unless such
pre-arbitration minutes are not in line with the law.
[20]
Taking into account the circumstances of this case, and the
arbitration award, I am of the view that the conclusion of the
arbitrator is reasonable in such a way that it is based on the
evidence that was presented before him and is in line with what
he
had been asked to determine.
Order:
[21]
I, consequently make the following order:
1. The review
application is dismissed.
2. There is no order
as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate Kruger SC
Instructed
by:
Garlicke & Bousfield Inc.
For
the Second Respondent:
Advocate Tilly
Instructed
by:
The State Attorney (Johannesburg)
[1]
Act 66 of
1995 as amended.
[2]
Founding affidavit (arbitration award), page 26.
[3]
As per the notice of motion.This prayer was further amended by the
applicant’s representative during argument before this
Court.
[4]
Act 55 of
1998
[5]
Section 1
of the
Employment Equity Act 55 of 1998
: “Black
people” is a generic term which means Africans, Coloureds and
Indians.
[6]
Section 186(2)(a) of the Labour Relations Act 66 of 1995(the LRA).
[7]
Section 133(2)(a) of the LRA
[8]
Transcribed records, page 5, line 20 -22.
[9]
Acronym for Unfair Labour Practice.
[10]
Pre-arbitration minutes, page 160.
[11]
Ibid, page 161.
[12]
Transcribed records, page 6, line 15 -25.
[13]
Ibid, page 14.
[14]
Transcripts at pages 17, 22,25.
[15]
Stellenbosch Farmers'
Winery Group Ltd and Another v Martell & Cie SA and Others
[2003 (1) SA 11
(SCA) at para 5
[16]
[2015]
11BLLR 1094 (LAC)
[17]
[1999] JOL
5301 (CC)
[18]
Transcribed records, page 37.
[19]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(CCT 85/06)
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) (5 October
2007)
[20]
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC) ;
[2009] 1 BLLR 1
(CC) ; (2008) 29 ILJ 2461
(CC) (18 September 2008)
[21]
Shatterprufe (Pty) Ltd v
Sesani NO and Others (PA4/13)
[2014] ZALAC 44
(10 September 2014):
[29] In the circumstances, it cannot be said that the
arbitrator committed any irregularity
which rendered her ultimate
finding unreasonable. The arbitration award, when considered with
reference to the evidentiary material
before the arbitrator,
represented a result that fell within the range of reasonable
outcomes. A review of a CCMA award is permissible
only if the defect
in the proceedings falls within one of the grounds in section
145(2)(a) of the LRA. For a defect in the conduct
of the proceedings
to amount to a gross irregularity as contemplated by section
145(2)(a)(ii), the arbitrator must have misconceived
the nature of
the enquiry or 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. Thus, even had the
arbitrator committed an irregularity
by not resolving the factual
disputes, it was incumbent on the court to enquire further to
determine if the outcome was unreasonable,
which, for the reasons
given, in this case it was not.
[22]
Arbitration award, page 24, at para 21.