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[2018] ZALCJHB 232
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SAMWU obo Manaka v Mabusela NO and Others (JR1197/15) [2018] ZALCJHB 232 (26 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1197/15
In the matter between:
SAMWU
obo W
MANAKA
Applicant
and
T.L. MABUSELA
N.O.
First
Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
Third
Respondent
Application heard: 21 June 2018
Judgment
delivered: 26 June 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the first respondent, to whom I shall refer as
‘the
arbitrator’. In his award, the arbitrator found that the third
respondent had not committed any unfair labour
practice relating to
promotion. The applicant had referred a dispute to the bargaining
council, the second respondent, after he
was not shortlisted for the
position of director: communication and information services, for
which he had applied.
[2] The factual background is not in
dispute. The facts are set out in the award under review, and I do
not intend to repeat them
here. In essence the applicant testified
that he had been employed by the third respondent since 1995. In
2002, he established
the communication and information services
section. In February 2012, he was asked to lead the communication
section which he did
for the purposes of completing a specific
project, after which he was stationed in Mamelodi. The advertisement
concerned appeared
in July 2013. The applicant stated that he was not
shortlisted despite the fact that he considered himself the most
experienced
person in the Metro Police in relation to communications.
[3] The third respondent’s
witness, the deputy chief of police, testified that one of the
requirements for appointment to
the advertised position was a minimum
of 8 years’ experience in policing at a senior management
level. The applicant did
not meet this criterion and that was the
sole reason for him not being shortlisted. The applicant had been
appointed in 2012 as
a superintendent, which is not a senior
management position. While the applicant had 8 years’
experience in communications,
he did not have 8 years’
experience in senior management. Six candidates were shortlisted; the
successful candidate met all
of the requirements. The witness
disputed that the applicant had been acting as a superintendent from
to 2002 to 2012, and that
he had established the communication and
information services section.
[4] In his award, the arbitrator
summarized the law relating to fairness in promotions and recoded
that it was for the applicant
to establish that the third respondent
had acted substantively or procedurally unfairly in relation to the
applicant’s application
for appointment. The arbitrator
recorded that the staffing policy applied to the appointment and
promotion of staff. He accepted
that the applicant had been present
at the inception of the communications section, whether it had been
started by him or someone
else. The issue for determination was
whether the respondent had failed to afford the applicant the
opportunity to be promoted.
In this regard, the arbitrator found that
the applicant had responded to an advertisement that stipulated that
the applicant should
have 8 years senior management experience. The
applicant had testified that he had been acting in the post of
superintendent for
more than 8 years, and thus fulfilled the
requirement. The third respondent had denied this, asserting that the
applicant had become
a superintendent only in 2012, and thus lacked
the required experience. The arbitrator concluded as follows:
After
analyzing the parties’ submissions, I realized that indeed the
advertisement needed someone who had
inter alia
, the eight
years senior managerial experience. According to my analyses, it
cannot be argued that indeed the applicant is the one
who established
the section or who was the founder member of the section that on
itself does not guarantee him an automatic right
to be promoted to
the position if the advertised requirements are not met. It was held
to be unfair for an employer to advertise
a position, sitting
prescribed minimum qualification, and then appoint a person who did
not possess that qualification…
I
also went through the successful candidate’s profile to enquire
as to whether there was any irregularity by the respondent
and I’m
satisfied that indeed he is someone whose profile is very pleasing
and his resume satisfied all of the requirements
by the employer. I
could not find any element of the respondent’s non-compliance
with its own policy.
Even
though the respondent initially advertised the position and later
readvertised to allow the outside candidates to apply, I
still could
not find any irregularity from the respondent side as clause 9.1 of
the staffing policy states that the employer can
readvertise if the
candidate does not meet the inherent requirements.
I
therefore could not find any irregularity in the respondent’s
action of appointing the person it has appointed
[5] The arbitrator’s finding
might have been more clearly expressed, but he appears to accept that
the applicant had not established
that he had met the requirement of
eight years’ experience at a senior managerial level. As I have
indicated, the arbitrator
went on to find that the third respondent
had not committed any unfair labour practice in making the
appointment it did.
[6] The applicant contends that the
arbitrator’s decision that the failure to shortlist him did not
constitute an unfair labour
practice is not one to which a reasonable
commissioner could come in considering the evidence presented before
him. The applicant
avers that the arbitrator ignored is and/or do not
apply his mind to the fact that none of the candidates who had
applied were
shortlisted for the position possessed the appropriate
tertiary career related qualifications, and that had the arbitrator
taken
account of the fact that the applicant possessed such a
qualification, he would have come to the finding that the applicant
was
the most qualified and suitable candidate for the position.
Further, the applicant contends that the arbitrator failed to take
into account the fact that he (the applicant) had more than eight
years’ experience in policing at a senior management level
which he gained from 2002 until 2012, when he was acting as a senior
superintendent. The applicant avers that evidence was presented
that
he had indeed performed duties at a senior management level for more
than eight years and that if the arbitrator applied his
mind to this
evidence, he would have come to the finding that the third respondent
had committed an unfair labour practice in failing
to appoint him. In
the circumstances, the applicant contends that the arbitrator’s
award ought to be reviewed and set aside.
[7] The third respondent, in its terse
answering affidavit, disputes that the applicant’s experience
constituted experience
at a senior managerial level and thus that the
applicant met the requirements for the advertised position. The third
respondent
admits that the applicant was appointed as an acting
senior superintendent until 2008, when it avers the department
stopped all
acting positions. During that year, the applicant
reported to a senior superintendent. In 2012, the applicant was
appointed to
the position of superintendent, a junior management
position.
[8] The applicable legal principles
are well-established. This court is entitled to interfere with an
award made by a commissioner
if and only if the commissioner
misconceived the nature of the enquiry (and thus denied the parties a
fair hearing) or committed
a reviewable irregularity which had the
consequence of an unreasonable result. The failure by an arbitrator
to attach particular
weight to evidence or attachment of weight to
the relevant evidence is not in itself a basis for review; the
resultant decision
must fall outside of a band of decisions to which
reasonable decision-makers could come on the same material (see
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)). In other
words, the test is two-staged. First, the applicant must establish a
misconception of the nature of the enquiry
or some misconduct or
misdirection on the part of the arbitrator. If that is established,
whether a decision is unreasonable in
its result ultimately requires
this court to consider whether apart from the flawed reasons of or
any irregularity by the arbitrator,
the result could still be
reasonably reached in the light of the issues and on the available
evidence.
[9]
In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one on
more factors
amounted to a process related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgement). Specifically,
the questions for a review court to ask are whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he was she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision maker could reasonably have arrived at based on
the evidence
(see paragraph 20). In short, when an arbitrator fails
to have regard to the material facts it is likely that he or she will
arrive
at a decision that is unreasonable. Similarly, where an
arbitrator fails to follow proper process he or she will arrive at an
unreasonable
outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal
analysis (at paragraph 21).
[10] The simple factual issue that the
arbitrator was called on decide was whether the applicant met the
advertised requirements
for appointment, and in particular, whether
he had eight years’ experience at a senior managerial level.
The applicant was
appointed in 2012 as a superintendent, which is not
a senior management position. The evidence by Dhlamini is clear –
the
applicant did not meet the requirement, and that was the sole
reason for his exclusion from the short list. To the extent
that the applicant relied on what he asserted to be his appointment
as an acting senior superintendent between 2002 and 2012, Dhlamini
disputed this and testified that the applicant had failed to
establish that he had indeed acted in that capacity.
[11] Given the clear issue in dispute,
it is remarkable that the applicant did not testify, in his
evidence-in-chief, that he had
acted as a senior superintended
between 2002 and 2012 and that this was experience accrued at a
senior managerial level. Before
the applicant testified, the issue of
proof of meeting the experience requirement was specifically raised
with the applicant’s
representative. The record reveals the
following exchange:
ARBITRATOR:
from what I understand from the submissions that both made, both of
you made, you are maintaining that the main reason
why he did not
make it, the main one is that he did not have the eight- year
relevant experience?
MR
BALOYI: as a senior.
ARBITRATOR:
as a senior?
Mr
BALOYI: Yes, senior management, yes.
ARBITRATOR:
is that the main issue?
Mr
BALOYI: yes, it is the main issue.
ARBITRATOR:
And from your side as far as I understand, Mr Moerane, is that he has
those, that particular experience?
MR
MOERANE: Ja, he has the 10 years, 10 years’ experience
MR
BALOYI: As senior, senior management? You can look at the advert of
the position, it states clearly that one should have a minimum
of
eight years applicable experience in policing at senior management
level. Eight years applicable experience in policing at a
senior
management level.
ARBITRATOR:
Mr Moerane, did you unpack this element of the minimum eight years at
senior level management and make sure that indeed
you have evidence
to prove that it qualifies or it goes along with every element that
is on that particular, on that particular
point?
MR
MOERANE: Ja. Chairperson, it has, it was taken up, that particular
point, that my member established this particular department,
it was
not there before, so to date he is still working in that section,
communication and information services, he established
that. He is 10
years in that particular…
ARBITRATOR:
Section.
MR
MOERANE: Section and he is a senior, he is there one who is helping
at the whole council. So the question of him being a police
person
outside in cameo with seniority, that was not what is required in
terms of him. He says the appointment as a Metro police
make seem to
qualify, a police officer, a traffic officer and those are the issues
that were concentrated on and the question of
him being a senior
somewhere and come to the council, that that was not an issue to be
canvassed because we did not want, our union
does not represent the
police people outside this.
ARBITRATOR:
I’m looking at this, I have underlined the policing at senior
management level. I need to understand, before we
go in deeper, I
would need to know exactly what it is that now the evidence that is
going to be needed.
Mr
MOERANE: My member qualifies to be at the senior management level.
ARBITRATOR:
Management, okay.
MR
MOERANE: Because he established the Department, one. Two, he is the
only one to date who has put every mechanism in place.
ARBITRATOR:
Okay.
MR
MOERANE: That makes him to be a senior.
ARBITRATOR:…
I need to understand that, as to whether does he… Remember
now, if we say he has eight years senior management
experience, then
that I think would be easier to say what exactly does the employer
mean by senior management level. You will simply
just have to prove
to say,’ Listen, he has been appointed since 2006 or 2005 in
senior management. This is the proof, therefore
that element is
satisfied’. But if we do not have that, possibly, maybe for me
to understand is that he does not have that
specific document that
says he is at the senior management level, but based on his seniority
and his experience in establishing
that particular one, two, three,
he was supposed to have taken, they were supposed to have taken him
into consideration at the
time of the appointment. I, that is what
I’m trying to establish.
[12] What is clear from this exchange
is that the applicant and his representatives had their own
definition of what constituted
senior managerial experience –
this did not relate to the formal managerial level at which the
applicant had been appointed,
but rather to his experience and his
perception of the level of management at which that experience was
related. The arbitrator
made it clear that he required some formal
form of proof, beyond the applicant’s mere assertion, that he
met the requirement
of experience for a period of at least eight
years at a senior management level. That proof was not forthcoming,
despite the arbitrator’s
direction. In contrast, the evidence
of Dhlamini was clear – in his view, the applicant did not have
the required experience
at the required level, and that his
appointment as a superintendent in 2012 was to a junior managerial
position. That evidence
was not the subject of any serious challenge,
certainly not to the point where the only reasonable conclusion to be
drawn was that
it should be disregarded.
[13] To the extent that the applicant
contends in these proceedings that in terms of a collective agreement
known as the staffing
policy the agreed procedure is to the effect
that a candidate must be considered to be suitably qualified for
appointment and shortlisting
if he or she meets any one or more of
certain defined qualifications relating to education, recognition of
prior learning, relevant
experience and the like, it was never the
applicant’s case in the arbitration hearing that the third
respondent was in breach
of this procedure or that the terms of the
agreement were the basis on which he sought to assert the right to be
shortlisted. It
is not open to the applicant at this late stage to
contend that that basis for his right to be shortlisted is the terms
of the
agreement, and any breach of it by the third respondent.
[14] In my view, having regard to the
record of proceedings, the applicant failed to establish that he was
unfairly excluded from
the short list. Further, on the evidence
before him, the arbitrator’s award is not so unreasonable that
no reasonable decision-maker
could come to it. The application thus
stands to be dismissed.
I make the following order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. T Malatji, instructed by Maenetja Attorneys
For
the respondent: Not in attendance