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[2017] ZALCCT 2
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Member of the Executive Council for Community Safety, Western Cape v Public Servants Association of South Africa obo Coetzee and Others (C238/2012) [2017] ZALCCT 2 (3 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C238/2012
Not
Reportable
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COMMUNITY
SAFETY, WESTERN
CAPE
Applicant
and
THE
PUBLIC SERVANTS ASSOCIATION
OF
SOUTH AFRICA obo DAVID
COETZEE
1st Respondent
DONALD
LACKAY
2
nd
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
3
rd
Respondent
HILARY
MOFSOWITZ
N.O.
4
th
Respondent
Heard:
13 October 2016
Delivered:
3 February 2017
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to set aside an arbitration award
under case number GPBC 3912/2010. The fourth respondent (the
arbitrator) ruled that the applicant had committed an unfair labour
practice relating to promotion.
[2]
On 7 June 2010, the senior management post of Director: Traffic Law
Enforcement was advertised. Six applicants were shortlisted
and
interviewed including the first respondent, Coetzee, and the second
respondent, Lakey. They were interviewed by a 5 member
panel
comprising senior members of the Department of Community Safety and
the Western Cape Department of Transport.
[3
Each of the panel members independently scored the candidates based
on their performance in the interviews. Lakey achieved the
highest
aggregate score (72.40%) followed by Coetzee (72.00%). The panel then
determined that the two highest ranked candidates
undergo a
management competency assessment conducted by an industrial
psychologist. It is common cause that the final decision
resided with
the panel.
[4]
The said assessment reports (which were part of the record before the
Arbitrator) state on their cover that: “This assessment
only
relates to the generic managerial competencies required for effective
performance as a member of the Senior Management Service.
It does not
reflect on the functional competencies required for the specific
post. As such it only forms one part of the selection
process.”
The summary and conclusion of the report as to Mr Lakey is recorded
as follows:
“
5.
SUMMARY AND CONCLUSION
Overall,
Mr Lakey performed at a competent level with the potential to develop
to the advanced level.
Based
on this assessment he exceeded the required proficiency level in the
following competency areas:
·
Programme and Project Management
·
Financial Management
·
Change Management
·
Service Delivery Innovation
·
People Management and Empowerment
·
Knowledge Management
·
Client Orientation and Customer Focus
He
performed at the required proficiency level in the following
competency areas:
·
Strategic Capability and Leadership
·
Problem Solving and Analysis
·
Communication
Hence,
from a management and leadership perspective he performed above the
expected level for the post. It is important to note
that competency
assessments are conducted in conjunction with other recruitment
methods and the final decision of appointment still
lies with the
relevant Executing Authority.”
[5]
In respect of Coetzee, the report’s summary reads as follows:
“
In
general, Mr Coetzee demonstrated an advanced level of competence. In
most areas he exceeded the required level of proficiency.
However,
for Service Delivery and Innovation he met the required proficiency
level.
Based
on his competency assessment, Mr Coetzee exceeded the requirements in
following competencies:
·
Strategic Capability and Leadership
·
Program and Project Management
·
Financial Management
·
Change Management
·
Knowledge Management
·
Problem Solving and Analysis
·
People Management and Empowerment
·
Client Orientation and Customer Focus
·
Communication
In
addition, he met the required proficiency level in respect of Service
Delivery Innovation.
It
is important to note that competency assessments are conducted in
conjunction with other recruitment methods and the final decision
of
appointment still lies with the relevant Executing Authority.”
[6]
Following the competency assessments, the selection panel reconvened
and deliberated. It unanimously nominated Lakey as the
most suitable
candidate and he was appointed to the post on or about 1 September
2010. Coetzee’s union referred an unfair
labour practice to the
third respondent on the basis that he was the best candidate for the
position and the department had acted
in bad faith in not appointing
him.
[7]
In concluding that the department had acted mala fide and unfairly in
appointing Lakey, the arbitrator found that:
7.1
The department ignored the results of the competency assessment which
“clearly weighed
heavily in favour” of Coetzee;
7.2
Mr K. Afrika, the Chief Director: Traffic Safety Management, a member
of the selection panel
“may have had a vested interest in the
process and failed to disclose this interest”. There was “an
indication
of bias and improper motive.”
7.3
Coetzee’s appointment would have advanced the department’s
employment equity
targets. Yet the department allegedly failed to
advance a plausible explanation for not taking this into account.
[8]
It is submitted on behalf of the applicant that the arbitrator did
not ask herself whether Coetzee had been given a fair opportunity
to
be considered for promotion. Instead she based the award on her
view that Coetzee was the better candidate. It was submitted
that by
asking the wrong question, she committed a material error of law,
which deprived the parties of fair hearing.
[9]
In addition, it is argued that the Award is so unreasonable that a
reasonable decision maker could not have arrived at it. Further,
that
the arbitrator mistook the true nature of her functions and the
enquiry before her, exceeded her powers and/or committed one
or more
gross irregularities in the arbitration proceedings.
[10]
Coetzee’s case at arbitration was that he was the better
candidate and that there was some kind of conspiracy against
him.
However, applicant submits that this was unsupported by admissible
evidence and amounted to conjecture. In addition it is
submitted by
applicant that Africa gave clear and coherent evidence about the
process of appointment. The Arbitrator did not make
an adverse
credibility finding against him yet dismissed his evidence out of
hand which, it is submitted, amounts to a material
misdirection.
[11]
The applicant submits further that the finding that Africa should
have recused himself because he had worked with Lakey for
a long
period of time to be ‘astounding’. It argues that here is
nothing sinister in a panel member having a working
relationship with
a candidate for promotion. Such a situation is the norm and not
the exception.
[12]
On the issue of ‘employment equity’ applicant submits
that it was uncontested that the employment equity statistics
were
taken into account at the short listing stage to the benefit of
Coetzee. Further that Coetzee did not make any case of unfair
discrimination.
[13]
In the Award, the Arbitrator had this to say inter alia in her
analysis of evidence and argument:
“
I
have noted the Department’s submissions with regard to Lakey’s
qualifications and Africa’s denial of undue influence.
However
this does appear to be a classic case of management wanting their
candidate to win the race. The Department has not advanced
any
plausible reason why it ignored the competency assessment results.
These results were undisputed and clearly weighed heavily
in favour
of Applicant. It makes no sense why the Department would submit its
candidates to such a test if it were completely satisfied
with the
interview scores. The interview scores were close and therefore a
more thorough investigation was implemented. It is undisputed
that
Applicant was rated at an advanced level of competency and scored
higher results. This was an objective fact for preferring
Applicant
over Lackey.
It
is also clear that Applicant’s appointment would have advanced
the Department’s Equity Targets and the Department
did not
advance any plausible explanation for failing to take this into
account when selecting its candidate.
While
a panel has discretion, this must be exercised fairly and
objectively. In the circumstances the panel has a positive obligation
to consider a number of factors. In terms of the Department’s
Recruitment and Selection Policy, the Department has an obligation
to
promote Equity and meet their numerical targets as set out in their
Employment Equity Plans. The policy also prescribes that
Points
allocated should be considered as a guideline with due regard to the
employment equity targets of a Department to identify
the most
suitable candidate. It appears that the Department ignored this
requirement.
It
also appears that Africa may have had a vested interest in the
process and failed to disclose this interest. It is a requirement
of
the Recruitment Policy that Panel Members disclose any interest in
the outcome of the process. It is clear that Africa’s
overall
scoring of Applicant was substantially lower than the rest of the
panel. It was undisputed that Africa and Lakey worked
together for a
lengthy period. It was also undisputed that Africa was not satisfied
with Applicant’s work record and Applicant
was transferred as a
result. There is an indication of bias and improper motive.
Based
on all the above factors, Applicant has discharged the onus to show
that the Department committed an unfair labour practice
in relation
to promotion. I am persuaded that the Department’s conduct was
unfair to promote Lakey while ignoring the results
of the competency
assessments and the Employment Equity profile of the post. Applicant
acted in the post for a considerable period
and appears to have had
the relevant experience for the post. Taking all these factors into
consideration, the Department’s
conduct was unfair. I have
especially considered that the Department has failed to comply with
its own Recruitment and Selection
Policy and therefore its decision
warrants interference.”
Evaluation
[14]
In my view the reasons given by the Arbitrator for finding ‘bias
and improper motive’ on the part of Africa, amount
to a gross
irregularity of the latent type. Coetzee did not apply for the
recusal of Africa. Further, an employer’s selection
panel
cannot be equated to an adjudicator (judge or arbitrator for example)
and the tests in law for establishing bias
[1]
cannot
simply be applied to an individual on such a panel. The applicant’s
evidence as recorded by the Arbitrator was that
a panel of 5 people
scored Lackey slightly higher than Coetzee and the final decision was
a panel decision. The Arbitrator did
not make any adverse finding in
respect of Africa’s evidence.
[15]
The competency tests as their results clearly state do not stand
alone as a recruitment tool. Nor do they relate to a specific
post
but evaluate a candidate’s competency for a generic post at SMS
level. Both candidates were assessed above the required
competency
for such a post, albeit that Coetzee scored on average at a more
advanced level. There is no basis on the evidence before
the
arbitrator for her finding that the results of these tests were
ignored by the panel.
[16]
Coetzee’s case on the issue of employment equity was recorded
by the Arbitrator as follows:
“
In
terms of the Department’s Employment Equity considerations, a
White Male should have obtained preference and was the appropriate
equity target for the post. Applicant is a White Male and Lakey is a
Coloured Male. The Employment Equity Statistics (May 2010)
reflected
White Males at 11% and Coloured Males at 39% (at Senior Management
Level). The Recruitment and Selection Policy imposes
a duty on
Respondent to meet its numerical targets as set out as set out in its
Employment Equity Plans. The Department’s
own documentation
reflects that Lakey’s appointment does not advance employment
equity.”
[17]
Coetzee benefited from obtaining a point at the selection process
stage reflecting the target percentages per population group
at SMS
level in terms of the applicant’s employment equity plan.
However the Arbitrator seems to have accepted Coetzee’s
submission that a white male was the appropriate ‘equity target
for the post’. Such an understanding is incorrect in
law, as
the targets of affirmative action measures are designated groups in
terms of the EEA as section 2 of that statute provides:
“
2
Purpose of this Act
The
purpose of this Act is to achieve equity in the workplace by-
(a)
promoting equal opportunity and fair treatment in employment through
the elimination
of unfair discrimination; and
(b)
implementing affirmative action measures to redress the disadvantages
in employment
experienced by designated groups, in order to ensure
their equitable representation in all occupational levels in the
workforce.”
[18]
As submitted by the applicant, Coetzee did not rely on unfair
discrimination in the dispute. The Arbitrator’s finding
that it
was unfair for the applicant to ignore the employment equity profile
of the post is one that a reasonable commissioner
could not make or
was a mistake in law.
[2]
In all the premises I find that the result of the Award is one that a
reasonable arbitrator could not make. That result is recorded
as
follows:
“
AWARD
Applicant
has discharged the onus to show that the Department committed an
unfair labour practice in relation to promotion. The
appointment of
Lakey is overturned with immediate effect and the Department is
ordered to redo the process for the position of
Director: Traffic Law
Enforcement from the interview stage. The panel must be a newly
constituted panel.”
[19]
There is an ongoing relationship between the parties and I do not
intend to make a costs order in this matter. I find no purpose
in
remitting the award. I order as follows:
Order
1.
The Award under case
number GPBC 3912/2010 is reviewed and set aside and substituted
as
follows:
1.1
“The unfair labour practice dispute brought by David Coetzee is
dismissed”.
____________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
S. Harvey instructed by the State Attorney.
Heads of Argument drawn
by G.A. Leslie
First
Respondent: Adams & May Attorneys
[1]
BTR INDUSTRIES SOUTH AFRICA (PTY) LTD AND OTHERS v METAL AND ALLIED
WORKERS' UNION AND ANOTHER
[1992] ZASCA 85
;
1992 (3) SA 673
(A)
[2]
In the LAC matter of
MacDonald's
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and Others (JA10/2016)
[2016] ZALAC 32
;
(2016) 37 (ILJ) 2593 (LAC) (28 June 2016)
the LAC had this to say at paragraph 30:
“
In
my view, there is much to be said for the proposition that an
arbitrator in the CCMA or in a Bargaining Council Forum who wrongly
interprets an instrument commits a reviewable irregularity as
envisaged by Section 145 of the LRA; ie, a reasonable arbitrator
does not get a legal point wrong. If so, the reasonableness test is
appropriate to both value judgments and legal interpretations.
If
not, ‘correctness’ as a distinct test is necessary to
address such matters. However, on either basis, the ruling
in this
case must be set aside. “