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[2018] ZALCJHB 136
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Minister of Police v Safety and Security Sectoral Bargaining Council and Others (JR2339/15) [2018] ZALCJHB 136 (29 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR
2339/15
In
the matter between:
THE
MINISTER OF
POLICE
Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First
Respondent
L
C SHANDU
N.
O
Second Respondent
POPCRU
obo K A
MAKOLA
Third Respondent
N
PILLAY
Fourth Respondent
Heard
:
20 March 2018
Delivered
:
29 March 2018
Summary:
An opposed review application. The applicant contends that the
second respondent’s findings that it committed an unfair labour
practice is not one that a reasonable commissioner can arrive at in
the light of the evidence presented. Alternatively, the only
prejudice is that of being deprived of an opportunity to compete and
the remedy of protected promotion was inappropriate. Held
(1) the
award is reviewed and set aside. Held (2) the applicant did not
commit an unfair labour practice. Held (3) there is no
order as to
costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award issued by the second respondent on 10 September
2015 in terms
of which it was found that the failure to promote the third
respondent (Makola) amounted to an unfair labour practice.
The
applicant was ordered to promote Makola with effect from 1 December
2012. Further, the applicant was ordered to pay the salary
difference
within 30 days of the award being issued. The applicant was aggrieved
and launched the present application.
Background
facts
[2]
The onset of the dispute arose when on 20
May 2011, the Divisional Commissioner: Personnel Management,
advertised various posts
at National level. One of the posts so
advertised was that of Section Head: Program Management Office:
Division: Technology Management
Services (At the level of Brigadier).
Makola, who at the time of the advert was a Colonel in the South
African Police Services
took interest and applied for the post. The
closing date for the applications was 06 June 2011.
[3]
It is unclear from the evidence when Makola
applied for the post. It is however apparent that Makola applied for
two posts. Her
interest was on the one mentioned above. On 02 June
2011, the Divisional Commissioner: Personnel Management issued
another circular
withdrawing some of the positions so advertised and
effected some amendments on the additional requirements for the post
that Makola
and about 83 others applied for. The original additional
requirements were NQF 6 in Police Sciences/Law/Political
Sciences/Humanity
or Management Sciences plus at least 5 years’
experience in related field.
[4]
The
amendments to about 11 posts were to the following effect: National
Diploma or B.Sc. Degree or B. Tech/Honors in the core functions
of
the posts and 3 years work and 2 year’s managerial experience
in IS/ICT related field. The Divisional Head requested all
Divisional
Commissioners, Components Heads and Deputy National Commissioners to
bring the amendment to the attention of all personnel.
It is apparent
from the evidence that Makola only became aware of the amendments in
September 2011 after she approached her immediate
Commander, who was
to chair the selection panel. She approached the General, when she
observed that she was not being invited to
an interview. She
subsequently lodged a grievance needing to be provided with the
reasons why she was not shortlisted. She was
not provided those
reasons. Upon her investigations, she discovered that her application
did not go through the screening process
as required by clause 8.5
(a)
[1]
of the National Instruction 4/2010.
[5]
Aggrieved by her non-shortlisting, Makola
referred a dispute alleging an unfair labour practice related to
promotion. After unsuccessful
conciliation, the dispute was referred
for arbitration. The second respondent issued an award favourable to
Makola. The applicant
in turn was aggrieved and approached this Court
for an appropriate relief.
Grounds
of Review
[6]
The applicant raised about five grounds for
review. In summary, they are (a) excess of power, (b) wrong factual
findings effectively
tantamount to failure to apply mind, (c) meeting
the core functions of the post-excess of power, (d) appointment to
the post-relief-excess
of power and (e) ignorance of evidence. Above
all, the applicant contends that the award is not one that a
reasonable commissioner
may arrive at.
Evaluation
[7]
The test for
review does not require repetition at every turn. It is trite that
only decisions that a reasonable commissioner cannot
make are
reviewable. In this regard reference is made to
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[2]
.
[8]
In terms of
section 186 (2) of the Labour Relations Act
[3]
(LRA), an unfair labour practice means any unfair act or omission
that arises between an employer and an employee involving-(a)
unfair
conduct by the employer relating to promotion. The dispute before me
relates to an alleged unfair conduct by the applicant
relating to a
promotion. From the record, it is apparent that Makola’s
complaint was about not being shortlisted. Her complaint
was not
about the additional requirements brought about by the amendment. At
arbitration, she testified thus:
“
Then
I saw that the withdrawal and the amendment
was
still giving me more chance to be competent
as
it was looking for the National Diploma…So a National Diploma
and a Degree to me, they are equivalent because it is NQF
level 6
[4]
[9]
The above evidence suggests that Makola did not
view the amendment as an unfair act. She was of the view that the
amendment does
not prejudice her. Her real gripe-alleged unfair act
was articulated thus, by her at arbitration:
“
So
if we have to look into the issue about my background and the
findings about how the process was done, then I was sure that I
can
lodge a grievance because then I see I was unfairly treated, and
being unfairly treated, it means I need to be provided with
the
reasons
why
I could not make it to the shortlist
…”
[5]
[10]
It is patently clear that according to Makola, she
was supposed to have been shortlisted as she felt she met the
requirements for
the post. She was never provided with the reasons
and she later discovered that in fact her application was not
screened. Therefore,
the conduct to have been considered on
arbitration was the failure to shortlist-depriving her of an
opportunity to compete. The
central question would then be, whether
the applicant acted unfairly by failing to shortlist Makola? It is
common cause that she
was not shortlisted.
[11]
General Mavundla testified at length at the
arbitration as to the reasons why Makola was not shortlisted.
Effectively, the reason
is that Makola did not meet the minimum
requirements. She did not have Information Technology qualifications.
She disputed her
evidence that she functioned in the space of
Information Technology. She had not completed the relevant
qualification that would
complement the core functions of the post.
[12]
The third
respondent’s representative conceded, rightly so, that in the
SAPS, promotional posts are filled through a recruitment
process
envisaged in the National Instructions. Therefore, to the extent that
when Makola was not shortlisted, the panel was guided
by the National
Instructions, then the conduct cannot be found to be unfair. In
South
African Police Service v Solidarity obo Barnard
[6]
,
the Constitutional Court had the following to say about the National
Instructions:
“
The
Instructions sets out the parameters within which a selection panel
must
work
…”
[7]
[13]
One of the
issues regulated by the Instructions is the issue of minimum
requirements. On the unchallenged evidence of Mavundla,
Makola did
not meet the requirements set out in the amended advert. Her further
unchallenged evidence was that the core functions
requires higher
level ICT qualifications, which Makola did not have. The LAC in
Monyakeni
v SSSBC and Others
[8]
,
had the following to say:
“
[47]
The substantive issue as regards the appellant’s dispute with
his employer relates to the issue of his core experience
in the field
of disability management.
The
determination of whether the appellant ‘s experience including
the recognised experience was such as to make him suitable
for
promotion is primarily a matter for the employer and the arbitrator
was required to defer to this decision when it is taken
following a
fair and proper process.”
[9]
[14]
In the light of the above, the third respondent
was in error and actually exceeded her powers when he reasoned thus:
“
[55]
The employer is yet to explain to this arbitration the relevance of
IT in ensuring efficient operation of the section PMO,
managing
programme and providing program support, managing business plan and
budget plan processes, managing promulgation and compliance
with
policy for Information Technology Management…
It
is quiet plain that what is required here in the main is the ability
to manage processes and ensure compliance with policies
as testified
by the employee. One can say outright that these functions have
nothing to do with an IT qualification and the most
relevant
qualification will be the one of management as testified to by the
employee.”
[10]
[15]
It is clear from the above that the second
respondent wrongly deferred to Makola as opposed to the employer. It
is not within the
powers of an arbitrator to determine what relevant
qualification is and what is not. Such is the task of an employer. It
is plain
that the second respondent thus ignored or failed to apply
mind to the evidence of Mavundla. Amongst others, she testified thus:
“
MS
MAVUNDLA:
The
qualifications that these core functions of the post is looking at,
it is looking at the SAPS qualification, which is the policing,
because the policing is the SAPS, the mandate of the SAPS is policing
and what the SAPS needs to,
what
division Technology needs to support the SAPS in is the IT, which is
IS/ICT qualification, any of those. If you hear me correctly,
I am
saying that the core functions of the post are demanded to be
performed within the SAPS, is IS/ICT functions within the SAPS,
of
which the SAPS mandate or the business need…”
[16]
She further testified that Makola did not have the
relevant and required qualifications. In addition, she testified
thus:
“
MS
MAVUNDLA
:
Okay, within the subjects you mentioned, of which Computer Literacy,
End-user Operating System, that is basic computing that any
other
degree will have to do because in any study, they mostly include
those, but as I said, the qualification,
we
looked at the completion of the qualification up to level 3, so if
you have gone up to level 3 on your subjects that are related
to IT,
then yes…”
[17]
It is clear from the evidence of Mavundla that
what was required was not a simple management of processes. Failure
to apply mind
entails ignoring the relevant considerations and
considering the irrelevant ones. Clearly, the second respondent was
on that path.
He placed premium on the amendment of the advert,
whilst the alleged unfair conduct related to the failure to
shortlist. Makola,
on her own version was not prejudiced by the
amendment. The fact that the employer shortlisted candidates who did
not have NQF
level 6 is neither here nor there. It is a red herring.
Makola’s case was not one of inconsistent application of the
entry
requirements. Her case properly considered, was that she ought
to have been shortlisted because in her mind she met the minimum
qualifications.
[18]
Seeking to find the applicable interpretation of
clause 4 of the National Instructions was an irrelevant
consideration. Makola was
simply not prejudiced by the amendment.
Being critical of the applicant was not helpful. A simple fact is
that the post requirements
were IT related qualifications, which, it
was common cause that Makola did not possess. It must then follow
that a reasonable commissioner
faced with the same evidence could not
have come to a conclusion that failure to shortlist Makola
constituted an unfair conduct.
[19]
The other
error, which evinces excess of power and failure to apply mind is the
order to promote Makola. It is common cause that
Makola was not
interviewed and or assessed by the panel. Qualifications and
experience only accounted 30% in the assessment for
promotion. Makola
was not assessed on the remainder of 70%. That being the case, how
could it be found that she was promotable
nonetheless? It is not the
duty of an arbitrator to assess an employee for promotion. The duty
of an arbitrator is to assess the
fairness or unfairness of the
failure to promote and not to assess promotability. Makola’s
case falls under the leg of being
deprived of an opportunity to
compete. The appropriate relief, had there been evidence to support
unfair conduct in relation to
shortlisting, would have been
compensation.
[11]
[20]
In summary, the second respondent did commit a
reviewable irregularity. Also the award does not fall within the
bounds of reasonableness.
Accordingly, the review application is
bound to succeed.
[21]
In the results, I make the following order:
Order
1.
The award issued by the second respondent is
hereby reviewed and set aside. It is replaced with an order that:
1.1
The applicant did not commit an unfair labour practice.
2.
There is no order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate
FMM Snyman with her Advocate B Hlangwane
Instructed
by:
State Attorney, Pretoria
For
the third Respondent: Attorney Mohale Magoshi
Instructed
by:
Majang Inc, Johannesburg.
[1]
Indicate on the covering sheet of each application whether or not
the candidate has been shortlisted. Yes, or No?
[2]
[2007] BLLR
1097 (CC)
[3]
Act 66 of
1995 as amended.
[4]
Page 21 at lines 1-10 Transcript. My own underlining and emphasis.
[5]
Page 21-22 at lines 23-25 and 1-2 of the Transcript.
[6]
2014 (6) SA 123 (CC).
[7]
At para 47.
[8]
Case JA64/13 delivered on 19 May 2015.
[9]
My own underlining and emphasis
[10]
Own emphasis and underlining.
[11]
See
Ncane v Lyster N.O
and Others
[2017] 38 ILJ 907 (LAC) and
South
African Police Service v Gebashe and Others
[2015] 36 ILJ 1620 (LC).