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[2018] ZALCJHB 253
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Gaitsiwe v Safety and Security Sectoral Bargaining Council and Others (JR2551/14) [2018] ZALCJHB 253 (27 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2551/14
In
the matter between:
BOABILWE
ELISHA GAITSIWE
Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
LC SHANDU N.O
Second
Respondent
MINISTER
OF POLICE
Third Respondent
DIBI
JACKSON MONYEPAO
Fourth Respondent
Heard:
20 April 2017
Delivered:
27 July 201
8
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The applicant is a police official in the employ of the South African
Police Service (SAPS) since January 1986, and holds
the rank of
Lieutenant Colonel in the Human Resources Utilisation unit. He
applied for an advertised position of Deputy Director
(Colonel) in
the Human Resources Utilisation Component: Performance Management in
July 2011, as he was of the view that he
met all of the
requirements for the post. He was shortlisted and invited for two
interviews conducted separately in November
2011 and
December 2012. In May 2013 following upon the
recommendations of the interview panel, the third respondent
(Minister) announced the successful candidate for the position as
being the fourth respondent (Monyepao).
[2]
Being of the firm belief that the failure to appoint or promote him
constituted an unfair labour practice, the applicant then
lodged a
grievance internally in July 2013. Still aggrieved, he then
referred a dispute to the first respondent, the Safety
and Security
Sectoral Bargaining Council (SSSBC). Arbitration proceedings
commenced with the second respondent as the appointed
Commissioner.
The
arbitration proceedings:
[3]
The applicant’s case before the Commissioner was that the
results of the interviews were not made available to him over
a long
period. He further complained about the fact that when the second
round of interviews were held, a different person was
appointed as
chairperson of the interviewing panel. He was suspicious of the
composition of the second interview panel, which constituted
of
senior managers, and who according to him, were angry with him
because of comments he had made against them in the past. He
also
questioned the reason why the results in respect of other posts
advertised at the same time were made known earlier.
[4]
Upon receipt of the second interview results he had requested that
documents relating to the interviews be sent for forensic
analysis in
the light of the scores indicating that he was marked down in certain
aspects of the interview, leading to a reduction
of his overall
scores. He was also concerned with the fact that the compilation of
the shortlist and the interview score sheets
were signed on different
dates when the panel sat once, including the fact that different pens
were used for the completion of
those documents. Despite his request,
no forensic analysis was done. He contended that the refusal to
subject the results to forensic
analysis had prejudiced him since its
outcome would have had an impact on the scores.
[5]
As compared to other candidates, he testified that he qualified for
the post in the light of his 10 years’ experience
in
performance management systems, and further having acted in the
post for over 20 months (Between April 2005 and November 2007).
The other three candidates including Monyepao worked in performance
system whilst the post fell under performance standard, which
was Senior Management System (SMS), and of which the others did not
work with. He contended that he had trained one of the candidates,
whilst Monyepao did not meet all the requirements for the post as he
merely had two years’ experience at the time that the
post was
advertised, having been promoted to the rank of Lieutenant Colonel
2009.
[6]
He further testified that Monyepao did not have knowledge of the
PERSAP (a system used to capture performance management information),
which was relevant for the post, whilst he had qualifications such as
B-Tech in Policing, Middle management Learning Programme
Course,
Advanced Diploma in Management, which was an equivalent of an honours
degree, and a certificate in management. At the time
of the
arbitration proceedings he was studying towards Advanced Diploma in
Management, and in particular strategic management and
project
management, which were essential for the post and his areas of
expertise. He further testified that SAPS spent R500 000
on him
to attend a course in strategic management, and no other employee had
done the course before.
[7]
The testimony of Brigadier Bruce Shaw on behalf of SAPS was
essentially that he was a member of the interviewing panel, which
was
guided by the requirements of the post when shortlisting candidates.
Qualifications in human resources was relevant, as was
policing
degrees, because knowledge of the police environment was a
requirement for the purposes of dealing with performance management
systems. Other additional requirements were also looked at, including
qualifications in human resources and/or a national diploma.
[8]
Shortlisted candidates were invited to a selection process which
consisted of interviews and psychometric tests in November 2011.
It was only after the first interview panel had embarked on the
process of psychometric testing and interviews that it was realised
that the process had not been approved. Upon obtaining legal opinion,
the first interview process was then rendered null and void,
hence it
did not issue results.
[9]
A second panel was then constituted and it was decided that the
interview process should continue with those candidates already
shortlisted. Five candidates including the applicant were then
interviewed and subjected to psychometric tests. The applicant
obtained the highest marks in the interview process, whilst he had
obtained the lowest in the psychometric tests. Upon the completion
of
the interview and psychometric testing, the applicant had obtained an
overall mark of 42%, which was lower than all the
candidates,
whilst Monyepao had obtained 84%.
[10]
A comparison between the applicant and Monyepao revealed that since
the post required a minimum of two years in the environment,
the
latter had between 2005 and 2007 worked in Human Resources at the
Head Office. From 2009 he dealt with performance standards
under
performance management component and had a total of seven years in
the field, coupled with complying with additional requirements
in
terms of the relevant degree and core functions.
[11]
During the interviews, the panel had asked the candidates similar
questions and upon a consolidation of the scores, they had
recommended Monyepao because of his performance as he had also
obtained 84% overall score.
The award:
[12]
The Commissioner in her analysis and having considered the
requirements of the post concluded that the applicant had not
established
an unfair labour practice on the grounds that;
12.1
The requirements included possession of a grade 12/senior certificate
or equivalent NQF 4 qualification
with two years proven relevant
experience in the specific field. Candidates were required to display
competence in the post specific
core function, be fluent in at least
two official languages one of which must be English; be computer
literate, MS Word, MS excel
MS Power Point and be in possession of a
valid driver’s license.
12.2
The post (Performance Management) also required additional
qualifications such as relevant degree/diploma
(NQF qualification)
and four years post qualification experience in the field.
12.3
The requirements for the post was two years, and proven relevant
experience in the field of the
post, whilst the additional
requirements were four years’ post qualification in the field.
Thus two years’ experience
rather than 10 years in the specific
field of the post meant that the requirements would be met.
12.4
In regards to the additional requirements of four years post
qualification, these became relevant
during the interviews. Monyepao
however as evident from his CV worked in various capacities as a
captain in the component Performance
management Unit; Performance
Standards; Lieutenant Colonel under Performance Management Unit (SMS)
and Special Projects.
12.5
There was no difference between standards and systems as alleged by
the applicant. All the candidates
performed tasks related to
performance management systems, which was a requirement for
selection, but the applicant on the other
hand was never involved in
customised performance management systems. The post did not list
knowledge of the PERSAP system as a
requirement, as it was merely an
administrative function.
12.6
The applicant could not challenge the scoring of other candidates,
including that of Monyepao
as he was not present in their interviews.
The fact that two interview processes were held could not constitute
an unfair labour
practice especially since the applicant had agreed
to subject himself to the second one. Thus the first interview
process was moot,
and there was no merit in the applicant’s
suggestion that the second interview process was not officially
approved.
12.7
From the second interview process, the applicant scored the lowest as
a result of his overall
performance and based on the psychometric
testing. Psychometric testing contrary to the applicant’s
submissions was not prohibited
by the National Instruction 6/2005
when evaluating candidates for positions. The applicant in this
regard had not laid any foundation
for his claim that his
psychometric testing results were swopped around to his disadvantage.
12.8
There was no merit in the complaint that there was a difference in
the dates on both the shortlist
document and interview score sheets,
nor in the contention that the scores were changed to the applicant’s
detriment.
The
grounds of review:
[13]
The applicant contends that the Commissioner’s award is
reviewable on the grounds that;
13.1
She failed to apply her mind to the evidence before her by either
failing to consider certain
material evidence, or at most, attached
disproportionate weight to the evidence;
13.2
She failed to take into account that the panel was without a
secretary whilst the allocations
were done in contravention of
paragraph 7(3) of the National Instruction 6/2005, which provides
that the chairperson must ensure
that the records are kept of all
proceedings during interviews and other meetings of the selection
panel as well as every decision
made and the reasons for the
decision.
13.3
She committed a reviewable irregularity in that she did not allow the
applicant to call two witnesses
to testify (viz, the chairpersons of
the two respective interviews), and instead unilaterally decided that
their evidence would
not contribute to his case, and instead,
substituted them for another witness whose evidence was manipulated
by the employer. She
further failed to assist him to successfully
subpoena the witnesses and/or to enforce the subpoena against the
witnesses that did
not respond to subpoenas.
13.4
She failed to consider the evidence that the applicant had
successfully acted in the post for
prolonged periods.
13.5
She attached disproportionate and/or insufficient weight to the
evidence that the applicant’s
scoring at the interviews were
higher than that of Monyepao, and further that the outcome of the
psychometric tests were unreliable.
13.6
She failed to take into account that the recommendation and
appointment of Monyepao was not in
accordance with procedures
outlined in the National Instruction, and further that he (Monyepao)
lacked the required knowledge and
experience of the Performance
Management Standards.
13.7
She discarded the applicant’s evidence that there was a
difference between the nature of
his current position and Monyepao,
and that based on the latter’s experience, he did not even
qualify to be shortlisted having
regard to the requirements of the
post.
13.8
She failed to consider Monyepao’s academic qualifications,
which were not relevant to the
advertised post
[14]
The applicant’s grounds of review were addressed in detail in
the answering affidavit, and I intend to deal with the
submissions
and heads of argument in that regard within the context of my
evaluation as below.
Evaluation:
[15]
Central to the determination of this review application is whether
the decision reached by the Commissioner is one that a reasonable
decision-maker could not reach[1]. To the extent that the nub of the
applicant’s grounds of review is the contention that
the
Commissioner failed to apply her mind to the evidence before her, or
placed some undue weight on some evidence to the exclusion
of other
relevant evidence, it has been stated in Head of the Department of
Education v Mofokeng and Others[2] that t
he
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity, but however that before such an irregularity will
result in the setting aside of the award, it must in addition
reveal
a misconception of the true enquiry or result in an unreasonable
outcome.
[16]
It has further been held that the failure by the Commissioner to
attach particular weight to evidence or attachment of weight
to the
relevant evidence is not in itself a basis for review. The issue
therefore is whether the resultant decision falls outside
of a band
of decisions to which reasonable decision-makers could come on the
same material[3].
[17]
Moreover, as stated in Mofokeng, the review court
must consider whether, apart from the flawed reasons of or any
irregularity by
the arbitrator, the result could be reasonably
reached in light of the issues and the evidence, whether the
arbitrator had not
misconceived the inquiry or undertaken the inquiry
in a misconceived manner, and whether there was a fair trial of the
issues[4].
[18]
The starting point is to make an observation that
the applicant’s grounds of review are such that they are akin
to grounds
of appeal, and to a large extent, pedantic. I did not
understand the applicant’s case to be that the Commissioner
misconceived
the nature of the enquiry or undertook the enquiry in a
wrong manner other than the irregularities alleged.
[19]
It is trite that there is no such thing as an
entitlement or a right to a promotion or appointment. In such
disputes, the employee
is only required to demonstrate that the
failure to promote or appoint was unfair as contemplated in section
186(2)(a) of the Labour
Relations Act (LRA)[5], further taking into
account that ultimately, the prerogative to appoint or to promote
remains that of the
employer[6].
[20]
The employer’s discretion can only be
interfered with, if it is established that it was
exercised
capriciously, or for insubstantial reasons, or based upon any wrong
principle or was exercised in a biased manner. Ultimately,
when an
employee raises an unfair labour practice dispute relating to
promotion, in order to be successful, he/she must show that
he/she
met the inherent requirements of the post in question, and that
he/she was the best candidate for the post. Furthermore,
it must be
demonstrated that the appointment of another individual in preference
over the employee was unfair[7], and there is
a further obligation to
demonstrate why the unfairness is alleged.
[21]
In this case, certain of the applicant’s submissions need to be
quickly disposed of. The first is that neither he nor
any of the
other candidates were entitled to the appointment, and to that end,
and on the facts, it was apparent that he, like
the other four
candidates, was afforded an equal opportunity to compete for the
position by being shortlisted and interviewed.
At most, the applicant
agreed that by being invited to an interview, it did not imply that
he would be appointed[8].
[22]
The second consideration is that the mere fact that the applicant had
acted in the position does not entitle him to that position.
An
acting stint in a position is but one of the many considerations to
be taken into account in determining whether a candidate
is competent
and suitable in the exercise of a managerial prerogative.
[23]
As also correctly pointed out on behalf of the third and fourth
respondents, the mere fact that the applicant was unhappy with
his
non-appointment does not give rise to an unfair labour practice. The
issue is whether the conduct of the employer in not appointing
him
was unfair.
[24]
Part of the grounds of review relates to the procedural fairness of
the interviewing process, and it is trite that a failure
to promote
or appoint does not only involve a consideration of the reasons for
non-appointment, but also whether particular procedural
prescripts
were adhered to in arriving at a decision as to whom to appoint[9].
In this regard, it was submitted on behalf of the
applicant that the
interviewing panel failed to adhere to the provisions of paragraph
7(3) of the National Instruction 6/2005 in
that interviews were
conducted in the absence of a secretary, who was supposed to keep
records of those proceedings and of meetings
and decisions arrived at
by the panel.
[25]
The applicant’s contentions regarding the non-compliance with
the provisions of the National Instruction are nonetheless
startling
in that it was his case both in examination in chief and under
cross-examination, that the employer did not have any
policy
regulating promotions.
[26]
The purpose of the National Instruction, which contrary to the
applicant’s contentions exists, is to regulate the appointment
and selection of employees at particular levels. Marisha Van Wyk, who
was appointed as the secretary to the interviewing panel
had
testified that it was for the first time that she had sat in the
interviews and was basically clueless about what was going
on as her
role was not clarified before. She had captured basic information of
the candidates and had not taken any further notes
as the panel
members took their own minutes. Her role was delegated to bringing
the candidates into the interviewing room and compiling
the long and
shortlist of the candidates, and she was asked to excuse herself from
the interview room whilst the panel discussed
the candidates.
[27]
Van Wyk’s testimony was not disputed, and the third and fourth
respondents’ response to the applicant’s contentions
was
that she could have recused herself from the task if she was
clueless. This contention nonetheless does not have any merit
in that
on Van Wyk’s uncontested version, she was asked to leave the
interview room whilst the panel deliberated over the
candidates. She
had not left on her own volitions.
[28]
The contention further fails to address the point whether the failure
to comply with the provisions of the National Instruction
insofar as
the keeping of interview records was addressed by the Commissioner,
which she clearly did not, and the impact of that
non-compliance on
the ultimate outcome of the interview process.
[29]
I have had regard to the founding, supplementary and replying
affidavits, and nowhere does the applicant indicate how the failure
to comply with paragraph 7(3) of the National Instruction prejudiced
him. I therefore see no reason why this issue was pursued
when it was
merely raised as a statement of fact.
[30]
The applicant further questioned whether the second interview panel
was approved by the Divisional Commissioner. Paragraph
6(1) of the
National Instruction provides that the Provincial or Divisional
Commissioner under whose command the post resorts must
appoint a
selection panel. In his cross-examination, the applicant confirmed
that he had not objected to the composition of the
panel at the time
it was convened or when he was interviewed[10]. This issue was
explored with Shaw during his examination in chief,
and his testimony
was to the effect that the second panel was approved by the acting
divisional commissioner[11]. In my view, that
response in the absence
of any contrary view put the issue to rest, and the Commissioner’s
finding that there was no evidence
to suggest that the panel had not
been approved cannot be faulted.
[31]
The applicant further complained that the promotion of Monyepao was
recommended on the same day of the long-listing process.
According to
him, this indicated that there was non-compliance with procedures as
specified in the National Instruction to the
effect that the
long-listing must be approved by the Divisional, Deputy or National
Commissioner, where after the shortlisting
must take place. Clearly
this contention is misplaced as it is common knowledge that the
process of shortlisting precedes that
of the interview process. I
fail to appreciate the merits of this complaint.
[32]
The applicant’s contentions that the Commissioner had equally
ignored the fact that he was scored higher in the interview
and that
the results of the psychometric tests were unreliable or inconclusive
are equally baseless. Again, it was not in dispute
that on the whole,
and upon a consideration of all the aspects of the interview process,
the applicant had the lowest mark amongst
the five candidates. The
mere fact that a candidate obtained a higher score in one
aspect of the interview process is not
sufficient on its own to be
deserving of a post. If upon a consideration of all aspects of the
recruitment interview, it comes
out that one candidate’s
performance was better than the others on the whole, the employer in
its discretion, is entitled
to appoint that candidate.
[33]
Further in this case, it was not the applicant’s contentions
that in applying its discretion, the panel had acted arbitrarily,
capriciously, or was motivated by any other untoward considerations.
The applicant’s suspicions of bias in that since the
panel
consisted of senior employees with whom he had quarrels in the past
remains, or that the panel had down marked him, manipulated
or
swopped the scores to his disadvantage remains suspicions, and these
are issues which neither the Commissioner nor this court
should
indulge.
[34]
In regards to his performance and scores flowing from the interview
process, the applicant conceded that based on the
documentation
available, he had not performed well, and he could not comment on the
performance of other candidates. He conceded
that the fourth
respondent achieved a high mark of 84%, Tseola got 60%, Monyebodi got
57%, Louw got 52%, whilst he got 42%. He
nonetheless contended that
the panel failed to apply its mind. Based on these scores, and the
fact that the applicant’s performance
was woeful as compared to
all other candidates, it is my view that his contention that he
should nonetheless have been appointed
is a classic case of
entitlement to a post. I fail to appreciate in what respects, it can
be said that the applicant ought to have
been the successful
candidate.
[35]
In regards to comparisons made with Monyepao, Shaw had at length
discussed these. He had testified on the candidates’
qualifications and other aspects of the requirements of the post in
making comparisons. He had conceded where required, that the
applicant and Monyepao were on par in certain respects, and that the
applicant’s score in the interview was higher than that
of
Monyepao. He had confirmed that contrary to the applicant’s
contentions, there was no difference in the tasks performed
in
performance management standard and performance system, and that the
only difference was that one system applied to senior management
level, whilst the other applied to employees at level 12 and below.
[36]
The issue of whether ten, four or two years’ experience was the
required minimum experience for the post was also sufficiently
dealt
with by Shaw, who had pointed out that Monyepao further complied with
additional requirements of four years for the post
given his post
qualification experience in the field. The Commissioner was therefore
correctly satisfied on the evidence that only
two years, instead of
ten within the Performance Management environment was required, and
that only additional qualifications and
four years post qualification
experience in the field of the post was required.
[37]
In the end, the Commissioner was correctly satisfied that based on
the points system as adopted, which encapsulated interviews
and
psychometric tests, the employer had not acted unfairly towards the
applicant, and that the latter had failed to demonstrate
any unfair
labour practice on the part of the employer.
[38]
In regards to the allegation that the Commissioner committed an
irregularity by excusing witnesses who were subpoenaed
upon
their failure to respond to the subpoenas, and thus deprived the
applicant of a fair hearing, the applicant intended to call
General
Mothlane, who was the chairperson of the first panel. This individual
had failed to respond to two subpoenas. The applicant
intended to
call that individual to lead evidence in respect of the results of
the first interview, which had not been made known.
[39]
The second witness the applicant had subpoenaed, General Mbatha, was
according to the applicant, meant to testify on issues
surrounding
whether the second panel was approved by the Divisional Commissioner,
and further shed light on the criteria used,
and the reason the
documents reflected the same date of shortlisting, long listing and
recommendations.
[40]
Prior to dealing with these allegations, it needs to be pointed out
that it is not correct as submitted on behalf of the applicant,
that
the Commissioner had unilaterally substituted Van Wyk with Shaw. Van
Wyk was called by the applicant whilst Shaw was lined
up as the
employer’s witness. The contention therefore that the
Commissioner substituted witnesses in circumstances where
Van Wyk was
called by the applicant lacks logic.
[41]
To deal with the issue of subpoenas, in circumstances where a person
fails to respond to a subpoena, the provisions of section
142(8) of
the LRA deem such persons as being in contempt of the
Commission/Council. Under section 142(9) of the LRA, Commissioner
may
therefore make a finding of contempt for any reason set out in
subsection (8), which finding may then be referred together
with the
record of proceedings to this Court for its decision in terms of
subsection (11).
[42]
The Commissioner’s approach therefore to merely pass the buck
to the employer in this case by threatening to draw an
adverse
inference against it should Shaw’s evidence not address issues
that the two witnesses would have raised is a clear
misdirection and
a gross irregularity in the conduct of proceedings. Furthermore, the
employer cannot be visited with an adverse
inference where its
employees refuse to respond to a subpoena, unless it can be
demonstrated that the refusal was engineered or
sanctioned by the
employer.
[43]
A subpoena issued by the Commission for Conciliation Mediation and
Arbitration (CCMA) or Bargaining Councils cannot simply
be ignored
unless set aside by this Court. In this case, the persons subpoenaed
were high ranking officials in SAPS who should
have known better. For
them therefore to simply ignore the subpoenas without just cause was
a clear basis for the Commissioner
to make contempt findings as
required in terms of the provisions of section 142 of the LRA.
[44]
The mere fact that it was the applicant in the arbitration
proceedings that had caused the subpoenas to be issued was irrelevant
for the purposes of making that contempt finding. There was however
no further obligation on the Commissioner as suggested in this
review
application, to aid the applicant in any other way other than through
the making of contempt findings. It was therefore
for the applicant
(in the arbitration proceedings), to either request a postponement
whilst the contempt proceedings under section
142(9)(b) of the LRA
took their course, or to proceed without those witnesses whilst
contempt findings were before this Court.
[45]
The issue however remains whether the Commissioner’s gross
irregularity vitiated her entire award, especially in the
light of
the findings already made in this judgment. Other than the issue of
contempt, which was a separate matter, the issue in
any event to the
extent that the Commissioner had misdirected herself in regard to the
issue of subpoenas is whether the applicant
was deprived of a fair
hearing by continuing with his case in the absence of those
witnesses. This question should be answered
bearing in mind that it
was his choice to continue, and barring the Commissioner’s
abdication of her duties in this regard,
or even a failure to advise
the applicant of his options.
[46]
The first potential witness, General Moutlhane was to testify in
regards to the results of the first interview. It was put
to the
applicant during his cross-examination that the first interview
process was in any event nullified on the basis that the
panel had
not been approved. The Commissioner had accepted that the issue
surrounding the first interview was moot and correctly
so. Once it
was not disputed that the first interview panel was not approved, any
other evidence pertaining to the results of that
interview would not
have taken the matter any further. This was particularly so since on
Shaw’s uncontested evidence, the
first panel never
convened and made recommendations[12].
[47]
In essence, General Moutlhane’s evidence (and without
exonerating him from his apparent contempt of the arbitration
proceedings), would not have taken the applicant’s case any
further, and it can thus not be argued that the applicant was
deprived of a fair hearing in regard to the absence of Moutlhane’s
evidence.
[48]
General Mbatha was to testify on whether the second panel was
approved. Without also exonerating Mbatha from his apparent
contemptuous conduct, that issue as already indicated, was explored
with Shaw at length, and in any event, the applicant’s
version
as also pointed out was that the second panel had indeed been
approved.
[49]
General Mbatha’s evidence was also meant to shed light on the
criteria used by the panel, and the reason the documents
reflected
that the dates of the shortlisting, longlisting and recommendations
were the same. Shaw had also testified on that issue
at length,
including how the overall scores were compiled and what criteria was
looked at, including competence based on the inherent
requirements of
the post, or the capacity to acquire within a reasonable time, and
the overall scores[13]. He had further
testified that knowledge
of the PERSAP function was not a requirement for the post.
[50]
In my view, to the extent that Mbatha and Shaw were members of the
same panel, I fail to appreciate what other evidence in
regards to
the criteria employed would have taken the matter any further. To
that end, even if the Commissioner failed to deal
with the issue
surrounding the failure to respond to the subpoena, and thus
committed an irregularity, as per the principles set
out in Education
v Mofokeng and Others[14] that
failure/irregularity
cannot result in the setting aside of the award, as there is nothing
to suggest that the Commissioner misconceived
the true enquiry,
undertook the enquiry in a wrong manner, or that result is an
unreasonable outcome.
In essence as correctly pointed out on
behalf of the employer, that irregularity is not of such a nature as
to vitiate the Commissioner’s
entire conclusions.
[51]
In the end, I am satisfied that save for the isolated irregularity
pointed out on the part of the Commissioner, that fact on
its own is
not sufficient to render the award reviewable. On the whole, the
Commissioner’s findings and award based on the
facts placed
before her fall within a band of reasonableness, and it follows that
the review application ought to fail.
[52]
I have further had regard to the requirements of law and fairness,
and I am not convinced that a cost order is warranted in
this case.
Accordingly, the following order is made;
Order:
1.
The application to review and set aside the award of the Second
Respondent is dismissed.
2.
There is no order as to costs
____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. H Bucksteg
Instructed
by:
Carel J Schoeman INC
For
the 3rd and 4th Respondents:
Adv. RC Jansen Van
Vuuren
Instructed
by:
State Attorney,
Pretoria
[1]
Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others
(2007) 28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)
[2]
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at para 30
[3]
See Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA).
[4]
At para 31
[5]
Act 66 of 1995, as amended
[6]
Provincial Administration Western Cape (Department of Health and
Social Services) v Bikwani and Others (2002) 23 ILJ 761 (LC)
at
paras 29 – 30.
[7]
Sun International Management Pty Ltd v CCMA and Others (LC)
(unreported case no JR 939/14)
[8]
Page 94 line 13 - 15
[9]
Noonan v Safety & Security Sectoral Bargaining Council &
Others (2012) 33 ILJ 2597 (LAC)
[10]
Page 76 line 23-24 – page 77 line 1
[11]
Page 149 line 17-18 of the transcribed record
[12]
Page 145 Line 1-5 of the Transcribed Record
[13]
Page 172 Line 9 -13 of the Transcribed Record
[14]
See supra fn 2