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[2018] ZALCJHB 11
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Kommal and Another v South African Police Service and Others (JR1115/15) [2018] ZALCJHB 11 (24 January 2018)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case 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
Delivered
:
24 January 2018
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL AND VARIATION OF THE JUDGMENT
LAGRANGE
J
Variation
of Judgement
[1]
Before addressing the leave to appeal of the applicants against the
judgement handed down on 5 December 2017, I need to correct
some
patent errors in the judgement, which are set out below. None of the
errors involve matters of substance and are simply typographical.
Accordingly, to the extent necessary, the judgement is varied by the
substitution of the following paragraphs, in which the changes
are
underlined:
1.1
Replace paragraph 5.3 with “5.3 The respective overall scores
of the panellists of the applicant
and
Kotze
, were 68, 7 % and
75.1 % respectively. They can be broken down further thus:.”
1.2
Replace paragraph [8] with “[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
Kotze
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.”
Application
for leave to appeal
[2]
The citation of parties is the same as in the original review
application. The applicants’ grounds of appeal are summarised
and addressed below. The second applicant, an Indian male, had
applied for the post of Commander: SAPS Academy Paarl: Division:
Human Resource Development at the level of Brigadier. Although he was
shortlisted, Brigadier C M Kotze was preferred by the selection
panel
based on their respective scores and other factors. He referred an
unfair labour practice dispute relating to promotion to
arbitration
but his referral was dismissed. Subsequently, his application to
review and set aside the award was also dismissed.
It is the review
judgement which he seeks leave to appeal against.
[3]
In essence, the applicants raise three grounds of appeal. Firstly,
they contend that the Court erred in its understanding of
the minimum
requirements for the post as a result of making certain errors of
fact. Secondly, the Court erred in respect of the
effect of
employment equity criteria in determining whether or not an unfair
labour practice had been committed. Thirdly, the court
failed to
consider the effect of the procedural irregularity of the failure of
the respondents to retain records of the selection
panel.
Minimum requirements
of the post
[4]
The applicants contends that having found that the SAPS ought not to
have equated Kotze’s Higher Diploma in Education
with the
“additional” job requirement of a qualification in
Management science, the court ought to have recognised
that her
application for the post should have been disqualified for failing to
meet the minimum requirements of the post.
[5]
While it is correct that I held that Kotze’s diploma was not
equivalent to the management science qualification, which
was
mentioned in the post advertisement as an additional requirement, the
critical issue was whether or not as part of the ‘additional’
requirements, it was a mandatory requirement. In the judgement, I
held that it was debatable whether it should have been considered
mandatory or not. The applicants do not attack the court’s
finding on this issue. As such, the arbitrator could not be faulted
for not finding that it was mandatory.
[6]
The applicants now also make much of the fact that Kotze had not
completed all the requirements for the EDLP qualification at
the time
of the shortlisting, even though she had completed the qualification
by the time she was interviewed. In her application,
she had advised
SAPS that she was in the process of completing the qualification and
it was not unreasonable to have included her
in the shortlisting on
the basis that she was in the process of completing the
qualification. Had she not completed the application
by the time of
the interviews, it would have been a different matter if she had been
allowed to proceed to the interview stage
notwithstanding not meeting
the minimum requirement by then. In any event, this argument relating
to the EDLP appears to be something
of a red herring as both the
second applicant and Kotze already had academic qualifications which
were rated above NQF level 6.
Insofar as the second applicant’s
non-completion of his EDLP by the time he was interviewed is
concerned, the relevance of
that related to the representation he
allegedly made that he had in fact completed the qualification.
[7]
The applicants further argue that paragraph (4) (2) Of National
Instruction of 2010 states that if the job applicant for a post
on
salary levels 13 to 15 does not have an applicable NQF 6
qualification or the higher qualification mentioned in the
advertisement,
the application must be rejected. However, this
argument as it was presented in the arbitration was premised on the
applicants’
understanding that the additional requirements
stated in the advertisement were mandatory, which contention has
already been dealt
with above.
Application of
employment equity
[8]
In the
judgement, I held that there was sufficient evidence before the
arbitrator to establish that even if equity targets had been
applied
rigidly, the second applicant would not necessarily have benefited
from it. Secondly, the unfair labour practice claim
had not been
based on unfair discrimination. I made reference in the course of
that part of the decision to the case of
Dudley
v City of Cape Town
[1]
,
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
.
[9]
The
applicants argue that the Court erred in relying on that judgement
and instead should have taken account of the decision in
SA
Police Service v Solidarity on behalf of Barnard (Police &
Prisons Civil Rights Union as Amicus Curiae)
[2]
where the Constitutional Court held that compliance with the SAPS
employment equity plan is mandatory, viz:
“
[46]
In the course of 2004 the national commissioner issued a
national instruction
42
(instruction)
which pertinently regulated the manner in which promotions within the
police service were to be dealt with.
It provides that the employment
equity plan is binding on all members of the police service.
Observing its requirements was mandatory
.”
[3]
Quite
apart from the fact that
Barnard’s
case concerned a
member of the SAPS who had challenged her non-promotion as a case of
unfair discrimination and not an unfair labour
practice, the
applicants do not dispute the first finding I made, namely that even
if employment equity considerations had been
rigidly applied, there
was no certainty that he would have benefited from that. As long as
that finding is unchallenged, I do not
understand how the further
arguments of the applicants on employment equity can provide a basis
for another court coming to a different
conclusion on the
arbitrator’s decision on the fairness of the second applicant’s
non-promotion.
Procedural
irregularities in the assessment process
[10]
Apart from the fact that the applicants raise the failure of the
selection panel to retain the records of its deliberations,
they do
not identify in what respect the court allegedly erred in regard to
this issue in the review. In my judgement, I found
that the absence
of the entire selection process record, by itself, was not sufficient
to give rise to an inference of procedural
unfairness. The applicants
provide no reason why there is a reasonable prospect another court
might come to a different conclusion
on this issue.
Order
[11]
The application for leave to appeal is dismissed, with costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
[1]
(2008) 29
ILJ
2685 (LAC) at 2708A-B
[2]
(2014) 35 ILJ 2981 (CC)
[3]
At 2997.