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[2018] ZALCJHB 280
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Department of Justice and Constitutional Development and Others v General Public Service Sectoral Bargaining Council and Others (JR486/16) [2018] ZALCJHB 280; (2018) 39 ILJ 2001 (LC) (10 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 486/16
In
the matter between:
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First Applicant
OFFICE
OF THE CHIEF JUSTICE
Second
Applicant
MEMME
SEJOSENGWE
Third Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
L
DREYER
NO
Second Respondent
PSA
obo THEODORE MADODA SEFUBA
Third Respondent
Heard:
27
March 2018
Delivered:
10 April 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
[1]
This application was brought
before the Court in terms of section 145 (1) read with section 158
(g) of the Labour Relations Act
(‘LRA’)
[1]
.
The first and second applicants seek an order reviewing and setting
aside the arbitration award dated 27 November 2015 issued
by the
second respondent (‘Commissioner’) under the auspices of
the first respondent (‘GPSSBC’). In the
award, the
Commissioner had found that the first and second applicants had
committed an unfair labour practice towards the first
respondent
(‘Sefuba’). The review application is opposed.
Condonation
for the late filing of the review application and the replying
affidavit:
[2]
The principles applicable to
applications for condonation are well-established as articulated in
Melane
[2]
.
The first and second
applicants had filed an application for condonation for the late
filing of the replying affidavit. Sefuba had
objected to condonation
being granted in that regard.
[3]
It was not in dispute that the
delay in filing the review application was about 13 days, which can
hardly be said to be excessive.
The delay was attributed to the
confusion caused because of receipt of the two awards, and further as
a result of the internal
workings of the office of the State Attorney
regarding the appointment and briefing of counsel.
[4]
The replying affidavit was
filed some three weeks out of time. This delay is also not excessive,
and was attributable to the confusion
surrounding whether copies in
that regard had been served and filed on time.
[5]
Given the nature of the delay
as indicated above in respect of both applications, I am satisfied
that the explanations in that regard
are reasonable and acceptable.
Further having had regard to the parties’ prospects of success
on the merits, the prejudice
to be suffered if condonation was to be
declined, fairness to both parties, and the overall interests of
justice, it is deemed
appropriate to grant the applicants condonation
in respect of the two applications.
Background
[6]
Until 2010, the Office of the
Chief Justice (‘OCJ’) was part of the first applicant
(‘DoJ & CD’). Sefuba
was appointed as General
Executive Manager in the OCJ by DoJ & CD in September 2004. The
position was equivalent to that of
a Chief Director, and on Sefuba’s
version, he reported to the late Chief Justices Arthur Chaskalson and
Pius Langa.
He also reported to Chief Justice Ngcobo.
[7]
The OCJ was established as a
national department with effect from 1 September 2010 by Proclamation
Number 44 in 2010. There are
material disputes of fact regarding the
effect on the organisational structure and posts that were held by
officials appointed
in the OCJ whilst it was still part of DoJ &
CD. What appears to be common cause however is that the key
performance areas
for the post of General Executive Manager in the
OCJ and other posts in that office were absorbed into various other
posts in the
new organisational structure.
[8]
In 2012, the OCJ put out
advertisements for the post of Secretary General. Sefuba had applied
for the post and it is common cause
that he was not even shortlisted.
He had then lodged an internal grievance relating to the OCJ’s
failure to shortlist or
invite him for an interview. Aligned to his
complaint was that he was not assessed or promoted since 2008/2009
whilst serving under
DoJ & CD. When his grievance could not be
resolved, he through the assistance of his union, PSA, referred an
alleged unfair
labour practice dispute to the GPSSBC on
19 December 2012.
[9]
There is a dispute of fact as
to what Sefuba’s role was in the OCJ between 2010 to date. The
applicants’ version is
that following the restructuring of the
DoJ & CD, and the establishment of the OCJ, Sefuba was offered an
opportunity by the
third applicant (‘Sejosengwe’), who
was subsequently appointed as the General Secretary, to discuss his
placement in
the OCJ. Sefuba is alleged to have shunned the
overtures, and had advised Sejosengwe to speak to his union instead.
The applicants
further contended that Sefuba at no stage lodged any
grievance after the establishment of the OCJ and had instead sat
idle, and
had to date, not rendered any service.
The
dispute before the GPSSBC:
[10]
In his referral to the GPSSBC,
Sefuba’s case was four-pronged, viz, the alleged unilateral
change to terms and conditions
of his employment; failure by the
employer to provide him with a contract of employment; failure to
assess and promote him; and
failure to invite him to an interview for
the position of Secretary General in the OCJ.
[11]
Following the failure of
conciliation proceedings on 16 May 2013, the dispute was set down for
arbitration before the Commissioner.
The proceedings were a
stop-start affair commencing from 19 August 2013 until
15 October 2015. The delays are
attributable to repeated
postponements as the parties attempted settlement of the dispute.
[12]
No oral evidence was presented
before the Commissioner as the parties had agreed that the dispute
could be determined on the basis
of documents and written
submissions. Sefuba’s submissions to the extent that they are
relevant to these proceedings and
as further considered by the
Commissioner were as follows;
12.1
His case was based on certain
undertakings allegedly made by the late Chief Justices Chaskalson and
Langa when the OCJ was first
established. These included that he
would be made the administrative head of the OCJ; being informed that
his official title would
be that of Secretary of the Judiciary; and
having been allocated an office at the Constitutional Court so as to
be closer to the
Chief Justice, to whom he reported.
12.2
Sefuba’s alleged that his
performance was assessed by the late Chief Justice Langa in 2007/2008
and 2008/2009; was found to
be promotable and entitled to a salary
progression, which the DoJ &CD nonetheless failed to implement.
He further complained
that since then, he had not been promoted or
assessed, and had remained at notch 3 of level 14 after 15 years as a
Chief Director.
12.3
According to Sefuba, when the
late Chief Justice Langa retired in July 2009 and was replaced by
Chief Justice Ngcobo, things turned
for the worst for him, as he was
informed that he would be deployed elsewhere. He nonetheless
continued to work under Chief Justice
Ngcobo until December 2009. In
January 2010 he was then informed to vacate his office at the
Constitutional Court and to relocate
to downtown Johannesburg where
members of the OCJ interim task team were based.
12.4
Attempts were made to integrate
him in the Chief Directorate: Court Services of the DoJ & CD
which was then headed by Sejosengwe,
but the parties could not agree
on a workable performance agreement and his job functions;
12.5
The OCJ was established with a
new organisational structure and post establishment it comprised of
seven directorates and two linked
institutions being the Judicial
Services Commission and the South African Judicial Education
Institute (SAJEI). After he was not
invited for interviews for the
post of Secretary General, he was instructed to assume his role in
another position and only became
aware of Sejosengwe’s
appointment after he had referred a dispute for conciliation.
12.6
Pending a determination of a
joinder application (to join Sejosengwe in the arbitration
proceedings), Sefuba was in December 2014,
offered a position in the
SAJEI and was informed that if he failed to accept it in terms of a
settlement agreement, a pre-dismissal
hearing would be instituted.
The position offered however was not on the same level as that of the
Secretary General. The settlement
discussions as a result yielded no
result.
12.7
Following a joinder ruling, the
matter came back before the Commissioner. Sefuba’s contentions
was that since the DoJ &
CD had
inter
alia
made certain
concessions in earlier arbitration proceedings held on 3 October 2014
regarding the merits of the case and the fact
that there was no
longer a working relationship, what was left for the Commissioner was
to determine the quantum of compensation
for him to exit the public
service.
12.8
In regard to the failure to
call him for an interview, Sefuba contended that he qualified for
shortlisting as he met the minimum
requirements. He contended that he
had the necessary qualifications and experience and was not even
furnished with reasons why
his application was not considered.
12.9
He sought an order from the
Commissioner, appointing him to the position of General Secretary,
and to be remunerated as from the
date that Sejosengwe was appointed,
or in the alternative, that he be awarded compensation equivalent to
the salary earned by Sejosengwe
from the date of her appointment to
the last date of her contract.
[13]
The applicants’ written
submissions before the Commissioner were that;
13.1
Certain submissions made by
Sefuba ought to be struck out on the basis that they were either
based on hearsay evidence and not supported
by proof, particularly in
respect of the background facts as sketched out by him which it was
denied was common cause, or that
they were inconsistent with the
documentary evidence that was presented.
13.2
Reference was made to a letter
of offer of appointment in a position at the SAJEI, which contained
details about how Sefuba was
appointed when he first joined the OCJ
during 2004, the establishment of the OCJ as a national department,
the restructuring and
creation of posts in the new establishment and
how this had affected the post he was initially appointed into.
13.3
The establishment of the
interim structure of the OCJ as an independent department constituted
operational requirements within the
meaning contemplated in section
213 of the LRA, and once the interim structure was approved in 2010,
this impacted on the key performance
areas of Sefuba’s original
post of Executive Manager, as they were no longer linked to that post
only but were spread across
several others.
13.4
When Sefuba refused to take up
a position at the SAJEI, it was indicated to him that the dismissal
provisions in terms of the Public
Service Act could be invoked since
all obligations had been complied with.
13.5
At some point in June 2015,
Sefuba had accepted the position at SAJEI after he acknowledged that
the position he initially occupied
was no longer in existence. His
main complaint however remained that he needed to see a job
description, which was subsequently
forwarded to him.
13.6
In regard to the allegations of
an unfair labour practice pertaining to the failure to shortlist
Sefuba, it was contended that on
its own, such a failure would not
constitute an unfair labour practice as he needed to prove that he
met all the requirements and
that the shortlisting committee breached
its own criteria. Furthermore, it was contended that any written
request for reasons by
Sefuba as to why he was not shortlisted was
not received.
13.7
In regard to the alleged
failure to assess performance, it was contended that Sefuba has not
been performing any duties and had
refused to enter into negotiations
with a view of placing him in an alternative position. He had also
rebuffed attempts to have
his services utilised in the OCJ and had
also rejected any offers to assist him. It was submitted that had he
accepted the offer
by the OCJ, he would have signed a performance
agreement and would have been assessed accordingly.
The
Commissioner’s Awards
[14]
It was common cause that the
Commissioner had issued
two
awards. The first award dated 27 November 2015 was issued on 12
January 2016. In that award, the Commissioner had found that the
DoJ
& CD and OCJ had committed an unfair labour practice towards
Sefuba. Regarding relief, the Commissioner made the following
order;
‘
The
Department of Justice and Constitutional Development and the
Department of the Chief Justice (jointly and severally, the one
to
absolve the other) are hereby ordered to pay the applicant a
severance package of R8 449 829.58 (eight million four hundred
and
forty-nine thousand eight hundred and ninety-two rands and
fifty-eight cents) minus tax as directed by SARS within 30 days
of
receipt of this award’
(Sic)
[15]
Obviously, there is everything
wrong with the above order particularly in light of the dispute and
the issues the Commissioner was
required to determine. A second award
followed on 15 January 2016 and was dated the same as the first one.
In the latest award,
the Commissioner again found that an unfair
labour practice had been perpetrated, and made the following order;
‘
The
Department of Justice and Constitutional Development and the Office
of the Chief Justice (jointly and severally, the one to
absolve the
other) are hereby ordered to pay the applicant compensation of R1 648
766.70 (one million six hundred and forty-eight
thousand, seven
hundred and sixty-six Rands and seventy cents (minus statutory
deductions) within 30 days of receipt of this award’
[16]
Out of concern, the applicants
sent an e-mail to the GPSSBC to seek clarity as to which award should
prevail. The GPSSBC through
its official (Tiyane Makhubele) responded
via e-mail and explained that the first award sent to the parties had
not been quality
controlled and was not supposed to have been sent,
and that the last copy sent was the final version from the quality
controller.
Makhubele’s further explanation was that the
Commissioner’s calculations regarding the amount of
compensation in the
first award was incorrect, and once the quality
controller had pointed out the errors, the Commissioner had agreed
with the corrections
made. Makhubele further sent through a trail of
e-mails exchanged between the quality controller (Ms Y le Roux) and
the Commissioner.
[17]
In the applicants’ Notice
of Motion, an order was sought to set aside the two arbitration
awards. It was submitted on behalf
of the applicants at the
commencement of these proceedings that the review was only being
pursued in respect of the second arbitration
award, as it was
accepted that arbitration awards issued by the bargaining council had
to firstly be quality controlled.
[18]
Notwithstanding the above, I
had still raised concerns surrounding the manner with which the final
arbitration award is said to
have been quality controlled, and I had
invited the parties to address me on my concerns. Written submissions
were made subsequent
to the hearing of the matter as requested.
[19]
In their submissions, both
parties agreed that it was permissible for the commissioner to amend
her award further to the quality
control process; that the
commissioner was not
functus
officio
upon the release of
the first award, because it was released in error, and was thus
entitled to issue the second award. In the alternative,
it was agreed
that even if the commissioner was
functus
officio
, she was entitled
to vary the first award
mero
motu
, and effectively did
so; and that the second award was thus the binding award and properly
the subject of the review application.
[20]
The applicants accepted in this
case that the only change brought on by the commissioner (following
the quality control process)
was to bring her award of compensation
in line with the limits imposed by section 194 (4) of the LRA. Had it
not been for the quality
control process, the relief granted by the
commissioner would –
ex
facie
the award –
have constituted an excess of powers in terms of section 145 (2) of
the LRA. Accordingly, the applicants do not
object to the corrections
made by the quality controller.
[21]
My concerns however remain
whether it is correct that the only changes made by the quality
controller pertained to the amount of
compensation. Upon a reading of
the two awards and the e-mail trail, I am not convinced that the
initial award was merely corrected
in regard to the calculation of
compensation.
[22]
The trail of e-mails
[3]
exchanged between Ms le Roux and the Commissioner fortifies my
concerns. In the first e-mail, Ms le Roux
inter
alia
raised the issue of
what the Commissioner was required to determine, i.e., the unfair
labour practice dispute, and the applicable
remedy in terms of
section 194 of the LRA. Thus far, the multiple concerns raised by Ms
le Roux were on point, and within the ambit
of permissible quality
control processes. The Commissioner appreciated the input of Ms le
Roux, conceding that she had slipped
up (
My
red face!,
as she put it.)
[23]
A further e-mail sent to the
Commissioner by Ms le Roux reads as follows;
‘
Hi
Lynette
It
was good to chat to you again after all this time.
Please
have a look at the attached document,
specifically the paragraphs
I added (highlighted in yellow) at the end of the award
Hopefully
this will give you an idea as to my train of thought- please amend as
you deem fit’
Regards
Y
le Roux’
[24]
The Commissioner’s
response was as follows;
‘
Hi
Yolande
I
am completely happy with what you wrote and have not changed anything
besides adding my electronic signature at the end. You are
correct
and have improved the award
and
the insight will be remembered.
Kind
regards, Lynette’
[25]
In
Total
Support Management (Pty) Ltd and Another v Diversified Health Systems
(SA) (Pty) Ltd and Another
[4]
as referred to in the applicants’ written submissions, it was
held that:
“
An
arbitrator is not entitled to delegate this function. He alone must
perform the duties he has undertaken and with which he has
been
entrusted, unless the parties agree otherwise. Because of the
essentially personal nature of his appointment he should be
circumspect about utilising the services of an assistant. Making use
of an assistant is not per se objectionable. … Failing
agreement [otherwise], an assistant should not be allowed to perform
tasks that may encroach on what would be regarded as the normal
functions of an arbitrator. In no circumstances may the assistant be
allowed to usurp the decision-making function of the arbitrator
or
act in a manner subversive of his independence. Ultimately the
question to be asked, and answered, is whether the arbitrator
exercised his own judgment in deciding the issues. This will depend
upon the facts of each particular case.”
[26]
The process of quality control
at the CCMA or Bargaining Councils is crucial for a variety of
reasons. Chief amongst these are to
ensure that awards issued by
Commissioners are competent and enforceable, and to some extent,
ensure uniformity or consistency
in line with prevailing
jurisprudence or CCMA/Bargaining Council good practices. At most, it
is expected of Commissioner’s
awards to meet certain standards
as set by the CCMA Guidelines
[5]
.
[27]
As to what the process of award
vetting at the CCMA and bargaining councils should entail is not for
this Court to prescribe. I
am however not convinced that the process
should be limited to mere editing in the form of ‘
formatting,
language and research’
as
suggested in
SA Nuclear
Energy Corporation v CCMA and Others
[6]
.
What is important is that there should be some form of engagement
between the quality controller and the Commissioner where serious
concerns are raised after vetting. Furthermore, it is important that
the quality controller should not be seen to usurp the statutory
powers and duties of the Commissioner as the arbitrator of facts and
evidence. Any vetting process cannot be seen to interfere
with the
substantive findings and conclusions made by the Commissioner on the
facts so that in the end, the final product remains
that of the
Commissioner. There is however a fine line between genuine quality
control/vetting and outright interference with an
award. That fine
line was crossed in this case as shall be illustrated below.
[28]
A perusal of the two awards
indicates that the original award was 13 pages long whilst the
corrected version is 15 pages. Substantial
corrections were not
merely made in regard to the issue of calculations of the
compensation, which calculation was incorrect in
any event, as it was
not based on Sefuba’s salary, but on the Secretary General’s
post. It is therefore apparent from
the second award that the
Commissioner’s analysis had to be aligned with the conclusions
reached in regard to the varied
quantum of compensation, hence the
additional paragraphs added by Ms le Roux. To this end, a whole
section on ‘
Remedy’
was added in the second award.
[29]
To the extent that Ms le Roux’
in her e-mail to the Commissioner had intimated that
she
had
specifically added
paragraphs
at the end
of the award, and further to the extent that the Commissioner had
expressed her satisfaction with what Ms le Roux
had added, and had
not ‘
not changed
anything besides adding my electronic signature at the end’,
I am inclined to hold the view that this is not a case where the
Commissioner had exercised her own judgment in deciding the issues
surrounding compensation and justification in that regard. A decision
on relief like the rest of the award is that of a Commissioner,
and
that function cannot be outsourced as it had happened in this case.
[30]
There is every reason to
believe that the process of quality control in this case exceeded
permissible boundaries, and the second
award cannot under the
circumstances be said to be that of the Commissioner and hers alone.
I do not understand the role of the
quality controller to be to
re-write awards where errors are picked up. Those errors can only be
pointed out to the Commissioner
and it is for him or her to re-write
the award or portions thereof in line with the corrections to be
made.
[31]
In my view, the Commissioner in
this case had abrogated her res
ponsibility
to decide on her final award after material errors of law were
pointed out to her by Ms le Roux. The Commissioner had
simply and
happily signed off the award after Ms
le Roux’s additions (instead of editions), and this had the
effect of rending the award
reviewable on the grounds of
irregularity.
The
grounds of review and evaluation:
[32]
For the sake of completeness
however, I will proceed to deal with other grounds of review in
respect of the second award. In her
analysis, the Commissioner
reasoned that Sefuba had a legitimate expectation to be appointed to
the post of Secretary General in
the OCJ, and that no reason was
proffered as to why he was not invited for an interview.
[33]
The Commissioner reasoned that
Sefuba was on the same level of expertise as Sejosengwe, particularly
taking into account his good
employment record, his experience and
the fact that he was a good candidate. The Commissioner further found
that Sefuba was not
responsible for the breakdown in the employment
relationship, was deprived of a career progression, and therefore
entitled to the
relief he seeks.
[34]
It does not appear in the award
that the Commissioner made any specific findings in regard to issues
surrounding the alleged unilateral
change to terms and conditions of
employment, the alleged failure to provide Sefuba with a contract of
employment, and the alleged
failure to assess and promote him.
[35]
The applicants contended that
the award was reviewable on a variety of grounds including that;
a)
It is not an award which a
reasonable decision maker would make when presented with similar
facts and evidence;
b)
The Commissioner misconducted
herself in relation to her duties as she came to an unreasonable
award in concluding that Sefuba should
have been appointed in the
post of Secretary General had he been granted the opportunity of an
interview due to his qualifications
and experience
c)
The procedure adopted by the
Commissioner was grossly unfair to the extent that it prevented a
fair ventilation of the issues
d)
The Commissioner failed to take
into account certain material evidence, including that Sefuba had
since 2010, never worked to deserve
any performance bonuses or to be
assessed on the work done
e)
The Commissioner failed to deal
with the applicants’ application to strike out certain
submissions made on behalf of Sefuba
in the written closing arguments
f)
There was further no basis to
order compensation of 12 months’ pay when Sefuba was still in
the employ of the OCJ
g)
The 12 months’
compensation was also incorrectly calculated as it was based on the
salary of the Secretary General, and not
at Sefuba’s level and
rate of pay.
[36]
Sefuba disputed each and every
ground of review relied upon by the applicants, and I do not deem it
necessary to repeat same in
this judgment. The enquiry into whether a
Commissioner’s decision falls within a band of reasonableness
as postulated in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[7]
involves a consideration
of:
(i)
Whether
in terms of her duty to deal with the matter with the minimum of
legal formalities, did the process that the Commissioner
employed
give the parties a full opportunity to have their say in respect of
the dispute?
(ii)
Whether
the Commissioner identified the dispute she was required to
arbitrate;
(iii)
Whether
the Commissioner understand the nature of the dispute she was
required to arbitrate;
(iv)
Whether
the Commissioner dealt with the substantial merits of the dispute;
(v)
Whether
the Commissioner’s decision is one that another decision-maker
could reasonably have arrived at based on the evidence
[37]
Central to the grounds of
review in this case is that the Commissioner failed to afford the
parties an opportunity to fully ventilate
the issues in dispute, and
thus deprived them of an opportunity of a fair hearing. It follows
that where the parties were not afforded
an opportunity to fully
ventilate the merits of the dispute, the Commissioner could not
possibly have been in a position to deal
with substantial merits of
the matter, as none or not all were presented.
[38]
It was common cause in this
case as already pointed out that no oral evidence was led before the
Commissioner, the parties having
agreed to present documentary
evidence and written submissions. The folly of this approach has been
pointed out by the Labour Appeal
Court
[8]
and this Court on numerous occasions
[9]
,
but it appears that the practice nonetheless continues unabated,
particularly in proceedings before bargaining councils.
[39]
The benefits
of affording the parties a full opportunity to state their respective
cases are that Commissioners equally becomes
fully appraised of the
full merits of the case to enable them to come to an informed
decision. The practice of cutting corners
and presenting a case by
simply making written submissions and burdening Commissioners with
bundles of documents from which they
are expected to make sense and
issue rational and reasonable outcomes is in most instances
inherently flawed. This is even more
pertinent in cases where the
question of onus is crucial, and also where material disputes of
facts are either glaring or at most,
should have been foreseen by the
parties and the Commissioner
[10]
.
[40]
The message that comes out of
the above authorities is clear. Thus,
a)
When parties decide to proceed
with matters without oral evidence, it is important that there should
at least be a clearly articulated
and signed pre-arbitration minutes,
followed by written statement of the facts agreed by the parties,
similar to a pleading (a
stated case)
b)
In the
absence of such a stated case, oral evidence should be led on the
material facts in dispute at arbitrations in terms of the
LRA.
Commissioners should not condone an agreement between parties that no
oral evidence be led unless such a stated case has been
agreed, and
on which they may draw legal conclusions.
c)
Although
parties may regard submitting documents and argument as a fast way of
resolving a dispute on the day of arbitration, it
in fact renders the
award issued susceptible to review
[11]
.
d)
Where
material disputes of fact are bound to rise in a matter, especially
in alleged unfair labour practice disputes or where the
conduct of
the employer is questioned, proceedings by way of a stated case
irrespective of the wishes of the parties is a non-starter.
e)
The
ultimate decision as to how proceedings should unfold in any event is
the exclusive preserve of the Commissioner as provided
for in section
138 of the LRA, as it is his or her responsibility to ensure that
disputes are fairly and fully ventilated, and
that parties are
afforded ample opportunity to state their respective cases.
f)
Parties
cannot insist on merely presenting documents and written arguments to
the Commissioner as they do so at their own peril.
They cannot, in
the face of an adverse award, allege that the Commissioner ignored
this or some other evidence, as documents on
their own do not
constitute evidence.
[41]
In this case, no
pre-arbitration conference was held, and as appears from the
transcribed record, the suggestion to have the matter
determined in
the manner it ultimately was came from the Commissioner
[12]
,
who had nonetheless expressed her reservations with that
approach
[13]
.
[42]
It was apparent from the
beginning that there were several material dispute of facts. These
were clearly pointed out to the Commissioner
by the applicants in
their written submissions notwithstanding the agreement to present
the case on the basis of documents and
written arguments.
[43]
Significant with the
applicants’ written submissions was that there was material
from Sefuba’s written submissions which
ought to be struck out,
but this did not seem to be an issue for the Commissioner as she
completely ignored an application in that
regard. Once there was an
application to strike out certain portions of Sefuba’s written
submissions, and once it was apparent
that there were glaring
disputes of fact, there was an obligation on the Commissioner to
reconvene the proceedings and to give
further directives to the
parties as to how to proceed. At most, the most sensible manner in
the light of the glaring disputed
facts would have been for the
Commissioner to insist on oral evidence being led.
[44]
Aligned to the above was the
fact that it was raised with the Commissioner on behalf of the
applicants that upon receipt of the
submissions, she was to give
further directions on the matter and she had agreed to do so,
including asking specific questions.
This was even more pertinent in
circumstances where the Commissioner was informed by the applicants’
counsel in the last
sitting of the proceedings that it was not clear
what Sefuba’s case was all about. Given these set of
circumstances, the
failure to reconvene the hearing in the face of
disputed facts in my view constituted an irregularity, as it was
apparent that
a fair and reasonable determination of the dispute
could not have been possible in light of those disputed facts and the
manner
with which the case was presented.
[45]
Other than the above
irregularities, the Commissioner than proceeded to find that the OCJ
and DoJ & CD had committed an unfair
labour practice by failing
to invite Sefuba for an interview or appointing him to the position
of Secretary General. This was even
though the recruitment process in
respect of the position of Secretary General was under the auspices
of the newly established
OCJ. As to how the DoJ & CD was
liable for an alleged unfair labour practice allegedly committed by a
separate department
is not fully explained by the Commissioner.
[46]
In disputes pertaining to
alleged unfair labour practices, the onus is on the employee to
establish the existence of that unfair
labour practice. This
principle was long established in
Department
of Justice v Commission for Conciliation, Mediation and Arbitration
and Others
[14]
,
where the Court held that:
“…
.
An employee who complains that the employer's decision or conduct in
not appointing him constitutes an unfair labour practice
must first
establish the existence of such decision or conduct. If that decision
or conduct is not established, that is the end
of the matter. If that
decision or conduct is proved, the enquiry into whether the conduct
was unfair can then follow. This is
not one of those cases such as
disputes relating to unfair discrimination and disputes relating to
freedom of association where
if the employee proves the conduct
complained of, the legislation then requires the employer to prove
that such conduct was fair
or lawful and, if he cannot prove that,
unfairness is established. In cases where that is intended to be the
case, legislation
has said so clearly. In respect of item 2(1)(b)
matters, the Act does not say so because it was not intended to be
so.”
[47]
Central to the Commissioner’s
conclusions was that the failure to shortlist or invite Sefuba
for an interview in respect
of the position of Secretary General
constituted an unfair labour practice. It is nonetheless trite that
in the light of the question
of onus as explained above, such a
failure on its own cannot be a basis for a claim of an unfair labour
practice. More than a mere
allegation in that regard was required.
[48]
The Commissioner’s
conclusions in this regard was that since Sefuba qualified for the
position by virtue of his experience,
the same level of expertise as
Sejosengwe, his employment record, and being a good candidate, he had
a legitimate expectation to
be appointed. Inasmuch as these factors
are important in proving unfair conduct, the difficulty with the
Commissioner’s conclusions
is that one struggles to find the
basis thereof.
[49]
It should be borne in mind that
no oral evidence was led in this case, and there were serious
material dispute of facts raised in
regard to Sefuba’s role in
the OCJ upon his appointment leading towards 2010. The Commissioner
had accepted that there was
a restructuring process after 2010 when
the OCJ became a separate department. However, how the Commissioner
could have concluded
that the post of the newly created Secretary
General was similar to the one that Sefuba occupied when he was
Executive Manager
in the previous OCJ in the face of disputed facts
is beyond comprehension.
[50]
The Commissioner proceeded to
form the view that Sefuba had a legitimate expectation to be
appointed to the position of the Secretary
General. As to what the
basis of that legitimate expectation is, and whether this was
Sefuba’s pleaded case remains unexplained.
Even if in paragraph
62 of the award the Commissioner had concluded that Sefuba and
Sejosengwe had the same level of expertise,
it is not clear what the
basis of that comparison is, and again, without oral evidence, it is
difficult to appreciate how that
comparison could have been made and
conclusions reached in that regard. It again remains unexplained as
to how such a conclusion
could have been arrived at in the absence of
oral evidence to establish that Sefuba met all the requirements of
the post. A mere
glance at a candidate’s
curriculum
vitae
, or that candidate’s
mere say-so cannot lead to a conclusion that the candidate is
suitably qualified for a post.
[51]
The Commissioner further made a
finding that Sefuba was not furnished with the reasons leading to the
failure to shortlist him,
let alone invite him for an interview. It
is accepted that candidates who fail to make a cut in respect of an
advertised post may
request reasons in that regard. Although it is
disputed in this case that Sefuba had made a request for reasons,
even if he was
not furnished with same, that cannot on its own lead
to a conclusion that an unfair labour practice had been perpetrated.
[52]
Contrary to the Commissioner’s
conclusions as supported by Sefuba, I did not understand the
principles set out in
De
Nysschen v General Public Services Sectoral Bargaining Council &
Others
[15]
to be authority for the proposition that in every case where a
candidate was not provided with reasons for the failure to shortlist
or appoint, that employee should be entitled to an appointment and
commensurate remuneration. To hold such a view would lead to
absurdity in that every unsuccessful candidate not furnished with
reasons would be entitled to some form of relief. Compelling
evidence
(which was not presented in this case), is still needed to
demonstrate that a candidate met the requirements of the post;
that
he or she was better than other candidates, and that the employer’s
conduct in not shortlisting, appointing or giving
reasons was
arbitrary, unreasonable or unfair. Thus, a mere application for a
post cannot led to some entitlement.
[53]
Given the circumstances of
this, the material that was presented before the Commissioner, and
the disputed facts raised therein,
there was no basis for the
Commissioner to come to a conclusion that Sefuba had demonstrated
that he met the inherent requirements
of the post of Secretary
General in the OCJ; or that he was the best candidate for the post;
and/or that the failure to shortlist
or invite him for interviews for
that post was unfair. On the whole, the process that the Commissioner
employed failed to give
the parties a full opportunity to have their
full say in respect of the dispute. Consequently, the Commissioner
could not properly
have dealt with the substantial merits of the
dispute, and in the end, her decision is one that another
decision-maker could not
reasonably have arrived at.
[54]
Both parties were in agreement
that in view of the irregularities pointed out, particularly in
respect of the manner the arbitration
proceedings were conducted, it
would be best to remit the matter to the GPSSBC. I agree.
[55]
I have further had regard to
the requirements of law and fairness in regard to the issue of costs,
and I am of the firm view
that a cost order is not warranted in
this matter.
[56]
Accordingly, the following
order is made;
Order
1.
The late filing of the review
application and the replying affidavit by the applicants is condoned;
2.
The arbitration award issued by
the second respondent under case number GPBC6-2013, dated 27 November
2015 is reviewed and set aside;
3.
The dispute between the parties
is remitted back to the first respondent (‘GPSSBC’), to
be heard
de novo
before a Commissioner (a Senior Commissioner) other than the second
respondent;
4.
Given the protracted nature of
this dispute, the GPSSBC is directed to set-down this matter for
arbitration on an expedited basis.
5.
There is no order as to costs.
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the 1
st
- 3
rd
Applicants:
A Myburgh SC with M Kgatla
Instructed
by:
The
State Attorney
For
the Third Respondents:
Mr. T
Ntshebe of Thabang Ntshebe Attorneys
[1]
66 of 1995
[2]
Melane v Santam Co Ltd
1962
(4) SA 531
(A)
at
532B-E.
[3]
Annexure ‘D’
to the Founding Affidavit
[4]
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) at para 41
[5]
CCMA Guidelines: Misconduct
Arbitrations. Published by the CCMA in terms of Section 115(2)(g) of
the LRA (effective from 1 January
2012)
[6]
(JR963/2016) [2018] ZALCJHB 108 (15
March 2018) at para 19, where it was held that;
“
It
is unclear why the CCMA introduced this so-called quality check if
this leads to one’s decision being second guessed
by another
and finally influenced to change. That does not become that
commissioner’s award as issued, but someone else’s
award
who did the quality checking – or two persons’ award,
one heard the evidence and the other read the former’s
award
and made his/her contribution. The only instance an award need
quality checking is as far as format, language and research
are
concerned and not the substantive merit part of the award.”
[7]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ
943 (LAC) at para 20
[8]
See
PSA and Others v Minister of Correctional Service and Others [2017]
4 BLLR (LAC) at para 16;
Arends and others v South African Local Government Bargaining Council and others (2015) 36 ILJ 1200 (LAC); [2015] 1 BLLR 23 (LAC)
where it was held that;
“
[15]
… When parties desire to proceed without oral evidence in the
form of a special case, it is imperative that there
should be a
written statement of the facts agreed by the parties, akin to a
pleading. Otherwise, the presiding officer may not
be in a position
to answer the legal question put to him. Alternatively, without such
a statement, the question put is in danger
of being abstract or
academic. … Where a question of legal interpretation is
submitted to an arbitrator, the parties must
set out in the stated
case a factual substratum which shows what has arisen and how it has
arisen. The stated case must set out
agreed facts, not assumptions.
The purpose of the rule is to enable a case to be determined without
the necessity of hearing
the evidence. An oral stated case
predicated upon poorly ventilated and potentially unshared
assumptions as to the facts defeats
the purpose of the requirements
of a stated case and, as this case shows, will lead to problematic
results.
[16]
Rule 20(1) of the Rules for the Conduct of Proceedings before the
CCMA (which might be followed in proceedings before bargaining
councils) allows for a pre-arbitration conference at which the
parties must attempt to reach consensus
inter alia
on
the agreed facts, the issues to be decided, the precise relief
claimed and the discovery and status of documentary evidence.
The
parties in this case did not engage in a proper pre-arbitration
process with the aim of agreeing a stated case. Although
the CCMA
Rules do not include provisions equivalent to the provisions of rule
33(1) and (2) of the Rules of the High Court, parties
who prefer to
proceed by way of a stated case at the CCMA or before a bargaining
council, in my view, should follow their prescriptions.
These rules
provide that the parties to any dispute may, after the institution
of proceedings, agree upon a written statement
of facts in the form
of a special case for the adjudication of the court. Such statement
shall set forth the facts agreed upon,
the questions of law in
dispute between the parties, their contentions thereon and shall be
divided into consecutively numbered
paragraphs. The parties must
annex to the statement copies of documents necessary to enable the
court to decide upon such questions.
[17]
Practitioners must follow these rudimentary elements of good
practice when intending to proceed on the basis of a stated
case. An
arbitrator faced with a request to determine a special case where
the facts are inadequately stated should decline to
accede to the
request. In this instance, the arbitrator did not do that.”
[9]
See
Hillside
Aluminium (Pty) Ltd v Mathuse & others
(2016)
37
ILJ
2082
(LC); Supt. MM Adams v The Safety and Security Sectorial Bargaining
Council & others [Case no: JR832/11; Delivered:
25 September
2015];
The South African
Social Security Agency v Nehawu Obo Malizo Punzi and 13 Others
[(Case No.: C233/14) Judgment delivered: 30 April 2015] at para 8
where it was held that;
‘
In
the absence of such a stated case, oral evidence should be led on
the material facts in dispute at arbitrations in terms of
the LRA.
Commissioners and arbitrators should not condone an agreement
between parties that no oral evidence be led unless such
a stated
case has been agreed, and on which they may draw legal conclusions.
Although parties may regard submitting documents
and argument as a
fast way of resolving a dispute on the day of arbitration, it in
fact renders the award issued susceptible
to review. In the result,
the principle of speedy resolution of disputes is ultimately
sacrificed.”
[10]
See Moqhaka Local
Municipality v SALGBC & Others Case no: JR 567/2013 (Unreported,
delivered on 16 September 2015)
[11]
SA Social Security Agency v
National Education Health & Allied Workers Union on behalf of
Punzi & Others
at para
8
[12]
Page 297 at lines
19 –
25; Page 299
at lines 17 of the Index to the Record,
[13]
Page 300 line 7 of
the Record.
[14]
(2004) 25 ILJ 248 (LAC) at para 73.
See also
Sun International
Management Pty Ltd v CCMA and Others
(LC)
(unreported case no JR 939/14, delivered on 18 November 2016)
[15]
(2007) 28 ILJ 375 (LC)