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[2018] ZALCJHB 67
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Minister of Correctional Services v POPCRU obo Mathidebi and Others (JR993/09) [2018] ZALCJHB 67 (20 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR 993/09
In
the matter between:
MINISTER
OF CORRECTIONAL
SERVICES
Applicant
and
POPCRU obo K M MATHIBEDI
AND
4
OTHERS
First
Respondent
P
M NGAKO
NO
Second
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGANING
COUNCIL
Third
Respondent
Heard:
26
July
2011
Delivered:
20 February 2018
JUDGMENT
SELLO, AJ
Introduction
[1]
There
are two applications for consideration in this matter. One brought by
the applicant for the review and setting aside of the
second
respondents award in respect of an allegation of unfair labour
practice lodged by the first respondent and concerning the
applicant’s failure to promote five employees represented by
the first respondent.
[2]
The
second application is brought by the first respondent in terms of
section 158 (1)(c) of the Labour Relations Act
[1]
(LRA).
[3]
This
is a matter concerning promotions effected by the applicant which
excluded the employees represented by the first respondent
who had
applied for the respective posts (for convenience I shall refer to
them simply as the employees). The promotions were effective
from 1
April 2008.
[4]
At
the outset, it must be mentioned that the record is in a woeful state
and replete with indications that certain words were ‘inaudible’.
This makes the record impossible to follow and difficult to
understand.
[5]
The
actual award of the second respondent is not part of the record. His
findings are however common cause between the parties
Background Facts
[6]
The
background to this matter is as follows.
[7]
During
November 2007, the applicant issued a national advertisement for the
promotion of employees to level 6 (correctional officer
grade II) and
salary level 7 (correctional officer grade I). The opportunity was
open to correctional officer grade III (level
5) and correctional
officer grade II (level 6).
[8]
The
advertisement prescribed the minimum requirements for applicants
applying to the respective positions. In regard to Grade II,
the
minimum criteria were a grade 12 qualification; at least 4 years
applicable experience; at least three years actual service
in the
rank of correctional officer grade III and a performance rating of at
least an average of 65% in the year 2006/2007.
[9]
Applicants
for Grade I were required to meet the following criteria - a grade 12
qualification, at least 7 years applicable experience;
at least three
years actual service in the rank of correctional officer grade II and
a performance rating of at least an average
of 65% in the year
2006/2007.
[10]
Officials
who were not in possession of a Standard 10 (grade12) qualification
but whose relevant experience exceeded the minimum
requirement per
grade were also encouraged to apply. Following the publication of the
advertisement, guidelines were issued advising
of the level of
experience applicants are required to have relative to the highest
academic qualification obtained in order to
qualify. Paragraphs 9.1.1
and 9.1.2 listed the key competencies required for levels 6 and 7
respectively.
[11]
The
guidelines addressed other relevant issues relevant to the invitation
to apply for the advertised posts. On the question of
selection
process, paragraph 7.3 provided selection criteria, additional to
those listed in paragraph 3.1 of the advertisement,
that would apply
in the event there were more qualifying officials than available
posts. officials were to be considered in terms
of the criteria
listed in paragraph 3.1. These included area of locality, seniority
(number of years on current salary level),
performance rating in
respect of the year 2006/2007 and passing the prescribed promotional
exams/further studies
[2]
.
A total of 19 posts were advertised. It is not clear whether 112 or
119 employees applied for the posts. The record appears to
suggest a
total of 112, whereas the respondents’ answering affidavit
states that 119 applications were received by the applicant.
This
discrepancy is however of no moment, as in either instance the
applications far exceeded the available posts.
Condonation
[12]
The
applicant states that the arbitration award made on 16 February 2010
was received on 25 February 2010. The applicant launched
the review
application on 4 June 2010.
[13]
Section
145 of the LRA prescribes that a review of an arbitration award must
be instituted within six weeks of the date the award
was served on
the applicant.
[14]
The
applicant therefore initiated these proceedings well outside the time
limits imposed by section 145.
[15]
No
cogent explanation for the delay however was advanced by the
applicant. On the applicant’s own version, consultation with
counsel, which was necessary for the preparation of the application,
was held on 12 April 2010. No explanation is put forward as
to why
the consultation could only be secured eight weeks after receipt of
the award. Equally, no explanation was tendered for
why it took a
further five weeks to draw the papers and file.
[16]
The
founding affidavit is not a substantive one. Neither does it raise
complex issues to justify a delay of five weeks in its preparation.
[17]
The
first respondent however does not challenge the explanation adduced
by the applicant for the delay, confining himself only to
the
question of the applicant’s prospects of success.
[18]
The
Court has a discretion to condone the late filing on good cause
shown. The correct approach to the question of condonation for
the
late filing was set out in
National
Union of Metalworkers of South Africa v Jumbo Products CC
[3]
wherein the court stated that:
“
[I]n
adjudicating such applications the Court normally has regard not only
to the facts and circumstances relating to the failure
to comply with
the procedural rules in question and the applicant's explanation
therefor, but also to other relevant factors, such
as the degree of
non-compliance, the importance of the case, the respondent's interest
in the finality of the judgment, the convenience
of the Court, the
avoidance of unnecessary delay in the administration of justice and
the applicant's prospects of success in the
main proceedings
(see
Federated Employers Fire & General Insurance Co Ltd and Another v
McKenzie
1969 (3) SA 360
(A) at 362G). In a particular case the
Court may be inclined to weigh the degree of non-compliance and the
explanation therefor
against the prospects of success….)”.
[19]
Notwithstanding
the applicant’s lack of cogent reasoning for its failure to
comply with the filing provisions of section 145
of the LRA, I have
decided to exercise my discretion and condone the late filing of the
application. In its affidavit, the applicant
had claimed that the
delay does not prejudice the first respondents, although no basis was
given for this contention. The first
respondent did not plead
prejudice. Instead as I said, it stated that it does not challenge
the reasons advanced for the delay
by the applicant.
[20]
I am
of the view that it is in the interests of both parties that the
matter be determined on the merits. In light thereof, I hereby
grant
the condonation for the late filing of the applicant’s review
application of the third respondent’s award.
The review application
[21]
The
applicant raises the following grounds of review:
21.1.
The
conclusion reached by the second respondent is not reasonable given
the evidence presented to him. Notwithstanding the selection
process
set out in paragraph 7.3, the regional office amended those
recommendations and utilised the criteria in paragraph 3.1.
21.2.
The
second respondent misdirected himself in finding that the applicant
had to apply the selection criteria set out in paragraph
7.3 in
circumstances where the paragraph states that it shall be applicable
where there are more qualifying officials than available
posts.
21.3.
The
employees were outclassed by other candidates on performance
criteria. If the employees were rated higher than the successful
candidates, paragraph 7.3 would have been of application.
21.4.
The
second respondent committed a gross irregularity in his finding that
the regional office was unfair to interfere with the decision
of the
selection panel to shortlist candidates in terms of paragraph 7.3.
There was no need to apply criteria set out in paragraph
7.3 as all
the preferred candidates had been promoted by applying paragraph 3.1
criteria.
[22]
The
grounds of review advanced by the applicant are without merit. The
original advertisement stipulated the criteria applicants
must meet
in order to qualify. Paragraph 12 of the advertisement specifically
stated that further guidelines would be communicated
in due course.
[23]
The
guidelines were subsequently issued. Paragraph 3.1 of these
guidelines provides additional criteria and states as follows:
“
in
addition to the job competency requirements
as stipulated in the advertisement, the criteria to be considered for
posts advertised in terms of the interim promotion Arrangement
Final
Phase”.
[24]
The
only rational interpretation that can be attached to paragraph 3.1 is
that it expands the original selection criteria set out
in the
advertisement. Paragraphs 3.1 and 3.2 of the advertisement
prescribed that grade 12 was the minimum educational requirement.
Absence of a grade 12 qualification was however not a bar to
consideration for the advertised posts. Paragraph 3.3 specifically
directed that officials not in possession of a grade 12 qualification
but with more relevant experience than the experience specified
in
paragraphs 3.1 and 3.2 would be considered for appointment.
[25]
The
guidelines address specifically the relevant experience required
depending on the highest academic qualification achieved. The
recognition of level of experience afforded those officials not in
possession of a grade 12 qualification to compete on an equal
basis
with those in possession of such qualification. This created an
entitlement for all those who applied and qualified for the
relevant
position to be considered together with those who possessed a grade
12 qualification.
[26]
Paragraph
7.3 of the guidelines sets out the selection criteria which would be
applicable in the event that more qualifying officials
than available
posts applied for the advertised posts. As it is, at least 112
applications were received.
[27]
The
advertisement clearly elicited a significantly higher number of
hopefuls than there were available posts. This would have required
a
two-stage assessment process. Firstly, all the applicants would have
to be assessed on the basis of the specified criteria to
determine
whether they qualified for promotion. If more officials than there
were available posts qualified, it would then have
become necessary
to implement a further process to select those officials to be
appointed. In the second stage the selection process
set out in
paragraph 7.3 of the guidelines would have to be followed.
[28]
There
was no other means of objectively and fairly selecting 19 officials
to appoint out of 112 without implementing the above process.
There
is no record of the appointment process on record. It remains unknown
how many officials qualified following assessment.
It is improbable
though that only exactly 19 people qualified for the posts, this
obviating a need to resort to the further selection
process in terms
of paragraph 7.3.
[29]
I am
willing to accept that the employees may not have qualified for any
of the posts. But that is not the important issue. What
is at issue
here is whether the selection process implemented by the applicant
accords with the criteria set out in the advertisement
and
guidelines.
[30]
Once
the selection criteria have been determined and published, the
applicant is bound to effect the promotions strictly in terms
thereof, unless it can advance a legally recognized basis for
deviation therefrom.
[31]
The
applicant contends that the Regional Commissioner amended the
recommendations of the selection panel on the basis that there
was no
need to apply the criteria in paragraph 7.3.
[32]
The
decision of the Regional Commissioner must be adjudged against the
selection criteria for promotion prescribed by the advertisement
and
the guidelines
[4]
.
Absent a full documentary record of the appointment process and
results, there is insufficient information to determine whether
or
not the conduct of the Regional Commissioner accorded with the
prescripts of the advertisement and guidelines.
[33]
It
was not open for the Regional Commissioner to deviate from the
prescribed selection process. Such deviation would render invalid
the
result of the selection process.
[34]
The
applicant’s reliance therefor on the conduct of Regional
Commissioner, which conduct constituted a clear deviation from
the
prescribed selection criteria, is misplaced.
[35]
Taking
all these factors into account, I am of the view that the basis on
which the applicant seeks to review the award of the second
respondent is not legally sustainable.
[36]
In
the circumstances, the following order is made:
Order
1.
The
application is dismissed with costs.
2.
The
first respondent’s application in terms of section 158(1)(c) of
the LRA under case number JR1297/10 is granted with costs.
____________________________
M
Sello
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the applicant
Advocate B Matlejoane
Instructed
by
The State Attorney
For
the first respondent
P
W Coetzer
Instructed
by
Grosskopf Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
NB No order of
preference or ranking.
[3]
1996 (4) SA 735
(A).
[4]
See
South
Africa Police Service v Solidarity obo Barnard
2014
(6) SA 123
(CC) at para 61.