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[2018] ZALCCT 13
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Pamplin v Western Cape Education and Others (C1034/2015) [2018] ZALCCT 13 (9 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C 1034/2015
In the matter between:
SHAUNA
PATRICIA PAMPLIN
Applicant
and
WESTERN
CAPE EDUCATION DEPARTMENT
First
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Second
Respondent
GAIL
McEWAN
N.O
Third Respondent
HILTON
PALANYANDI
Fourth
Respondent
Heard:
14 September 2017
Delivered:
9 May 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicant (Pamplin) seeks an order reviewing and setting aside
the arbitration award issued on 31 October 2015
by the
third respondent (Commissioner) acting under the auspices of the
second respondent (ELRC). The Commissioner dismissed Pamplin’s
referral and found that she had failed to discharge the onus to
demonstrate that the failure by the first respondent (Department)
to
promote or appoint her to an advertised position constituted an
unfair labour practice.
[2]
Pamplin further seeks an order directing the Department to appoint
her to the position of Principal of Delta Primary School
with
back-pay to the date of non-promotion, alternatively granting her
‘protected promotion’. In a further alternative,
she
seeks an order remitting the matter for arbitration afresh by the
ELRC before an arbitrator other than the third respondent.
The
Department opposed the review application.
Preliminary
issues:
(i)
Condonation – late filing of the answering affidavit:
[3]
The Department filed the answering affidavit some two and a half
months late. The delay is attributed to Pamplin having served
a
supplementary affidavit on the Department’s attorneys of record
on 6 December 2016, followed by the service of
Pamplin’s
further supplementary affidavit on 14 December 2016.
[4]
It was further submitted that the Department’s representative
at the arbitration proceedings, Girchwin Philander was on
sick leave
between 6 and 15 December 2016. A copy of his medical
certificate was attached to the answering affidavit.
On
15 December 2016, Philander then took leave until
4 January 2017, and between 9 and 13 January 2017.
The deponent to the answering affidavit, Jason Fry, the Department’s
Deputy Director: Employee Relations also took leave
during
15 December 2016 and 4 January 2016. It was
submitted that the only available time that Philander and
Fry were
available to consult and settle the answering affidavit was on
22 December 2016 when they were both on leave.
An agreement
to extent the time frames for filing the answering affidavit was also
secured with Pamplin’s attorneys of record.
[5]
Pamplin did not oppose the application for condonation, and I am
satisfied that upon a consideration of applicable principles,
the
Department had shown good cause for the late filing of the answering
affidavit, which ought to be condoned.
(ii)
Additional Supplementary affidavit filed by Pamplin:
[6]
The Department further took issue with an additional supplementary
affidavit filed by Pamplin, which essentially contains a
voluminous
report prepared by a ministerial task team appointed by the Minister
of Basic Education into allegations of malfeasance
in the appointment
of educators by members of teachers’ unions and department
officials in various provinces. The Department
pointed out that the
report had no bearing on this matter as it was not placed before the
Commissioner in the first place.
[7]
To the extent that the report
is indeed new material that was never placed before the Arbitrator,
the Court ought to ignore it for
the purposes of this review
proceedings
[1]
.
The
dispute and arbitration proceedings:
[8]
The dispute between the parties arose against the following
background;
8.1.
Pamplin, a female coloured educator with 37 years of experience in
all
three phases applied for a position of Principal at Delta Primary
School in 2014. After a process of shortlisting and interviews,
Pamplin and the fourth respondent (Palanyandi), a coloured male, were
the only two out of six candidates recommended for appointment
by the
School Governing Body (The SGB) on 22 July 2014. Palanyandi
was the first on the list of recommendations.
8.2.
In its recommendations, the SGB also indicated that equity
considerations
were not applied by the selection committee, and that
this was left to the employer’s discretion. The SGB further
indicated
that it supported the appointment of any one of the two
candidates.
8.3.
The final decision to appoint was therefore that of the Head of
Department
(HOD) Ms Penny Vinjevold. She appointed Palanyandi on
23 September 2014.
8.4.
Aggrieved at her
non-appointment, Pamplin made enquiries with the HOD as to the
reasons she was not appointed. In the absence of
a response, she then
made a PAIA
[2]
application, to establish the reasons she was overlooked. Some
documents were furnished to her in that regard, and still aggrieved,
she then on 13 January 2015 approached the ELRC with an
alleged unfair labour practice dispute referral. When conciliation
failed, the dispute was referred for arbitration.
8.5.
The arbitration proceedings
were held over three days. The issues in dispute as captured by the
Commissioner were whether the SGB
and the HOD had failed to exercise
their discretion fairly in terms of the Employment of Educators
Act
[3]
and to apply the Department’s employment equity plan in view of
Pamplin falling within that category as a coloured
female.
8.6.
Pamplin testified in her case, whilst the Department called two
witnesses,
viz
, Chantal Juries, the secretary of the SGB, and
Kay Spears, the Departmental Inspector, who oversaw the interview
process. The HOD
was not called upon to testify, whilst Palanyandi,
who was joined to the proceedings also testified.
8.7.
Central to Pamplin’s case was that in the absence of any
reasonable
justification, the decision not to appoint her was at best
arbitrary, or at worst, motivated by impermissible reasons. Her
contention
was that based on a variety of factors such as her
necessary qualifications; skills and experience for the position;
longer service;
her high scores in the competency test and interview
than Palanyandi, and the fact that the SGB was comfortable with her
or Palanyandi,
she ought to have been preferred especially under the
Department’s employment equity plan.
8.8.
She contended that because all things being equal, she was to be the
preferred candidate under the Department’s equity plan,
particularly since coloured females were under-represented at post
level 4 (Principal), which factor the HOD failed to consider in
exercising her discretion.
8.9.
Pamplin further submitted that the failure to give her reasons for
not
appointing her demonstrated that HOD had failed to apply her
mind, and that the decision was arbitrary and unfair. In addition,
Pamplin complained of certain irregularities in the interview
process, which raised a reasonable apprehension of improper conduct,
including that full information might not have been placed before the
HOD prior to her making her final decision.
8.10.
In the light of the grounds of review as shall be dealt with below, I
do not deem it necessary
to repeat the summary of the evidence led
during the arbitration proceedings as the Commissioner in my view
adequately did so in
her award. Most of the factual material in any
event appears to be common cause. Any areas of conflict in the
evidence of the witnesses
including that of Pamplin shall be dealt
with further in my evaluation to the extent necessary.
The
Award:
[9]
The Commissioner pointed out that the onus in such disputes was upon
Pamplin to prove the unfair labour practice on a balance
of
probabilities. She proceeded to have regard to the requirements of
the advertised post, in terms of which suitable candidates
had to
have appropriate teaching qualifications including a minimum four
years diploma/degree recommended and at least 10 years
teaching
experience of which three years should be as HOD or deputy level.
[10]
The Commissioner observed that Pamplin had a three- year diploma and
had credits, but that she had not yet applied for recognition
of
prior learning which also related to her experience on the job.
Palanyandi on the other hand had a three-year degree. Furthermore,
they both exceeded the minimum ten years’ experience required,
were allocated the same scores and were both equal
opportunity/affirmative
action candidates.
[11]
The Commissioner referred to the short-listing score sheets which
revealed that Palanyandi was scored at 69 and ranked first,
whilst
Pamplin was ranked fifth at a score of 62. Having had regard to the
Department’s Employment Equity Plan (2013- 2017),
the
Commissioner found that on the evidence of Spears and Juries, there
was no fault in the manner that the SGB had carried out
the
shortlisting process.
[12]
In regard to the interviews, there were six candidates for the post,
and Pamplin had scored 42 whilst Palanyandi had scored
39. The
Commissioner took note of Pamplin’s concession in her evidence
that a difference of three scores could be minimised
through
consensus as the gap in the scores was small in any event. The
Commissioner further rejected Pamplin’s evidence that
she was
told by one of the panellists, (Spears) during the interviews that
she was the best candidate.
[13]
The Commissioner accepted the testimony of Juris and Spears that
Pamplin had during the interview, appeared to be extremely
nervous,
spoke a lot and lost herself in the need to keep talking. In the end
however, the Commissioner found that even though
some comments were
missing from the available copies of the score sheets of both Pamplin
and Palanyandi, nothing could be read
into that omission, and Pamplin
was not in any manner prejudiced in the light of her being nominated
for consideration by the SGB.
[14]
In regard to the competency test undertaken by both Pamplin and
Palanyandi, the Commissioner took regard of the fact that the
Psychometrist did not testify, and that the results were not
disclosed due to their sensitive nature and need to respect
confidentiality.
Notes however made available by the Psychometrist
revealed that Palanyandi might not have been comfortable with the
cognitive aspect
of the job, but that overall, his behavioural
preferences in the workplace indicated that he seemed comfortable
with the required
behavioural competencies of a school principal, and
that he was a stronger match than Pamplin despite their scores being
similar.
The Commissioner concluded that there was nothing unfair
about the competency testing or the results in that regard.
[15]
In regard to the application of the Employment Equity Plan, the
Commissioner observed that affirmative action measures as well
as the
manner in which they are applied must comply with the requirements of
fairness, rationality and proportionality in order
to escape the
definition of an unfair labour practice. Upon a further consideration
of what constituted fairness in the application
of these measures,
the Commissioner concluded that since it was common cause that
Pamplin was suitably qualified for the job and
that the gap between
her and Palanyandi in terms of merit was not too significant or wide,
she could not therefore complain of
any unfairness in the manner the
plan was implemented.
[16]
The Commissioner had regard to
the provisions of section 7(1) of the Employment of Educators Act
[4]
,
and found that redress/equity was applied once during the
shortlisting stage as prescribed in the Department’s employment
equity plan, and there was nothing placed before her to indicate that
the SGB could have done anything further to address the inequalities
of the past. She concluded that Pamplin had no right to the promotion
and was listed on the nominations by the SGB as the second
preferred
candidate.
[17]
To the extent that other witnesses such as the HOD were not called,
the Commissioner observed that the issue surrounded the
conduct of
the employer in failing to promote Pamplin. This implied that it was
not the conduct of the SGB of nominating Pamplin
as the second
preferred candidate that was challenged as being unfair, but that of
the HOD in not appointing her.
[18]
The Commissioner concluded that to the extent that the HOD was the
person who had made the final appointment from the list
of candidates
given to her by the SGB, she was not called upon to testify, and no
reasons were given to explain why she was not
subpoenaed. The
Commissioner therefore drew an adverse inference and held that since
Pamplin failed to subpoena the HOD to testify,
she had therefore
failed to show that the discretion exercised by the HOD to appoint
Palanyandi could be said to have no rational
or reasonable basis.
[19]
Ultimately, the Commissioner concluded that Pamplin had on a balance
of probabilities, failed to prove that she was the subject
of an
unfair labour practice when not appointed to the advertised position,
and there was no evidence placed before her that the
conduct of the
SGB was unreasonable, irrational, capricious, arbitrary or unfair.
The
grounds of review:
[20]
Pamplin contends that the Commissioner misconstrued the nature of the
enquiry, prevented a fair trial of the issues, misconducted
herself
in her evaluation and her application of the law, and arrived at a
decision that was so unreasonable that no other reasonable
decision
maker would have arrived at. In this regard, she contends that;
a)
The commissioner failed to evaluate the fairness of the employer’s
conduct in the light
of the statutory provisions circumscribing the
discretion to promote, thus failed to apply her mind to material
issues, leading
her to misconceive the nature of the enquiry;
b)
The Commissioner failed to decide whether the decision of the HOD was
fair or not, thus misconceiving
the nature of the enquiry and denying
her a fair trial of the issues, and wrongly concluded that the
process was fair simply because
the SGB had acted fairly, without
looking at the conduct of the HOD;
c)
In deciding the dispute on the basis that Pamplin failed to discharge
the onus because she
did not call or subpoena the HOD, the
Commissioner not only misapplied the law regarding the burden of
proof, but also breached
the
audi alteram partem
principle, by
failing to raise the issue with the parties. It was not incumbent
upon Pamplin to subpoena the HOD to give evidence.
d)
The conclusion that the non-promotion did not constitute an unfair
labour practice in the
absence of any evidence concerning the HOD’s
reasons and what he took into account in reaching her decision was
unfounded
arbitrary and unreasonable
e)
The Commissioner misunderstood the relevance of the employment equity
plan when considering
the justifiability of affirmative action
measures, instead of appreciating that Pamplin’s case was that
employment equity
considerations were not taken into account in
deciding not to promote her
The
legal framework:
[21]
The test applicable in review
applications as elucidated in
Sidumo
[5]
is trite. The enquiry remains whether the decision under review is
one that a reasonable decision maker could not have come to
in the
light of the available material presented. To the extent that the
grounds of review in this case centred around whether
the
Commissioner had misconceived the nature of her enquiry, or failed to
afford the parties a fair trial of the issues, the review
test was
further explained in
Gold
Fields
[6]
as follows;
‘
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.’
[7]
[22]
The enquiry however as further
clarified in
Gold
Fields
is not
confined to
a
simple evaluation of the evidence presented to the arbitrator and
based on that evaluation, a determination of the reasonableness
of
the decision arrived at by the Commissioner. It is further not
confined to whether the Commissioner misconceived the nature
of the
proceedings but extends to whether the result was unreasonable
[8]
.
Thus, the questions to be asked are;
i.
In terms of his or her
duty to deal with the matter with the minimum of legal formalities,
did the process that the arbitrator employed
give the parties a full
opportunity to have their say in respect of the dispute?
ii.
Did the arbitrator
identify the dispute he was required to arbitrate (this may in
certain cases only become clear after both parties
have led their
evidence)?
iii.
Did the arbitrator
understand the nature of the dispute he or she was required to
arbitrate?
iv.
Did he or she deal with
the substantial merits of the dispute? and
v.
Is
the arbitrator’s decision one that another decis
ion-maker
could reasonably have arrived at based on the evidence?
[9]
[23]
The Constitution of the
Republic guarantees everyone the right to fair labour practices,
which right is further given effect through
the provisions of section
186(2)
[10]
of the Labour Relations Act (LRA)
[11]
and the Employment Equity Act (EEA).
[12]
Despite the guarantees, it has been held that the LRA does not create
a right or entitlement to be promoted, unless there is some
agreement
or law assuring the employee that right
[13]
.
This bearing in mind that in accordance with the principles
established in
Apollo Tyres
South Africa (Pty) v CCMA and Others
[14]
,
an employee who alleges a
case of unfair labour practice relating to a promotion need not to
prove that he has a right to promotion.
[24]
The obligation in terms of
section 186(2) of the LRA is to act fairly towards the employee in
the selection and promotion process
but taking into account that it
is the prerogative of the employer to make appointments
[15]
.
The exercise of that prerogative is nonetheless not immune from
scrutiny, as instances of gross unreasonableness in its exercise
may
lead to drawing of inferences of bad faith
[16]
.
To that end, it is trite that central to disputes pertaining to
appointments or promotion of employees is the principle that that
courts and commissioners alike should be reluctant, in the absence of
good cause, to interfere with the managerial prerogative
of employers
in making such decisions
[17]
.
Any form of interference should be with the objective of dispensing
fairness to both parties.
[25]
The onus to establish that
conduct complained of constitutes an unfair labour practice within
the meaning of section 186(2) of the
LRA rests on the employee
[18]
.
The employee must therefore be able to lay the evidentiary foundation
for his or her claim of an unfair labour practice. Mere
dissatisfaction with the outcome of a recruitment or selection
process is not sufficient to sustain that claim. In order to succeed
with claim related to promotions or failure to appoint, an employee
must
inter alia
,
demonstrate that as against the successful candidate;
i.
the/she met all inherent
requirements of the position;
ii.
he/she was the best
candidate for the position;
iii.
that not being promoted
caused unfair prejudice to him/her;
iv.
and
that there is a causal connection between the unfairness complained
of and the prejudice suffered
[19]
.
[26]
The mere fact that the employee
has the required experience, ability and technical qualifications for
the post is however not sufficient,
nor is it sufficient for the
employee to merely assert that he or she scored higher in the
interview process or some other criterion
linked to the selection
process. There is still a burden on him/her to demonstrate that the
decision to appoint someone else to
the post in preference to him or
her was unfair. Provided the decision by the employer to appoint one
in preference to the other
was rational, no question of unfairness
can arise
[20]
.
[27]
In
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
Others
[21]
it was also emphasised that the overall test is one of fairness, and
that in deciding whether or not the employer had acted unfairly
in
failing or refusing to promote the employee, relevant factors to
consider include whether the failure or refusal to promote
was
motivated by unacceptable, irrelevant or invidious considerations on
the part of the employer; or whether the employer’s
decision
was motivated by bad faith, was arbitrary, capricious, unfair or
discriminatory; whether there were insubstantial reasons
for the
employer’s decision not to promote; whether the employer’s
decision not to promote was based upon a wrong principle
or was taken
in a biased manner; whether the employer failed to apply its mind to
the promotion of the employee; or whether the
employer failed to
comply with applicable procedural requirements related to promotions.
The list is not exhaustive.
Evaluation:
[28]
In terms of section 6(1)(b) of the Employment of Educators Act, the
ultimate decision to make appointment is that of the HOD,
after
receipt and consideration of the recommendations of the SGB. Thus,
for all intents and purposes, any reference to ‘employer’
for the purposes of a finding of unfairness should be in reference to
the HOD as the statutorily mandated official who takes decisions
on
behalf of the Department. As I understood Pamplin’s case, and
further based on the two central grounds upon which a review
is
sought, it is the decision of the HOD which is under attack.
[29]
To the extent that Pamplin sought to attack the decision of the SGB
to recommend both her and Palanyandi, it is my view that
such an
attack as correctly found by the Commissioner was without merit. The
SGB’s position and recommendations were clear.
Even if
Palanyandi was the first recommended candidate on the list, the order
on the list was meaningless, as the SGB had unequivocally
stated that
any of the two candidates would be acceptable for appointment. The
SGB had specifically mentioned that it had not taken
into account
employment equity considerations in making its nominations, and that
approach cannot equally be faulted in view of
Pamplin and Palanyandi
being almost equally or evenly matched, and both being in any event
eligible for appointment under the Department’s
employment
equity plan.
[30]
As far as the two candidates were concerned, there were no other
extraneous factors that can be said to have been overlooked
by the
SGB to reach a conclusion that Pamplin should or should not have been
recommended. Both candidates were not as already pointed
out,
entitled to the appointment or promotion. Both had been given equal
opportunities to compete for the post and irrespective
of differences
in scores in the criterion used, which were in any event
satisfactorily explained by the Juries and Spears, nothing
turned on
these inconsequential differences as far as the SGB was concerned,
moreso since the ultimate decision was that of the
HOD.
[31]
The issue is whether the HOD in exercising her discretion and
appointing Palanyandi, acted rationally, or whether she was motivated
by other irrelevant considerations. That evidence sadly was not
before the Commissioner, as the Department elected not to call
upon
her to testify. Ms. Harvey in her submissions conceded that the
evidence presented at the arbitration proceedings related
to the SGB
processes and there was no evidence in relation to the conduct of the
HOD. To that end, there is therefore no merit
in Pamplin’s
ground of review to the effect that the Commissioner failed to decide
whether the decision of the HOD was fair
or not. It cannot be said
that the Commissioner misconceived the nature of the enquiry or
failed to consider the evidence as to
whether the discretion to
appoint Palanyandi was exercised fairly, in circumstances where no
evidence was presented for that determination
to be made.
[32]
Fundamental to the grounds of review raised is whether in deciding
the dispute on the basis that Pamplin had failed to discharge
the
onus because she did not call or subpoena the HOD, the Commissioner
not only misapplied the law regarding the burden of proof,
but also
breached the
audi alteram partem
principle. Furthermore, the
issue is whether it was incumbent upon the Commissioner to raise the
issue of the testimony of the
HOD with the parties prior to drawing
adverse inferences, and/or whether it was incumbent upon Pamplin to
subpoena the HOD to give
evidence.
[33]
The Commissioner had correctly pointed out that the decision of the
HOD as to who to appoint had to be rational and fair. The
difficulty
nonetheless is that the Commissioner opined that the HOD ought to
have placed significance weight on the order of preference
of the SGB
as it was the latter that had gone through the interview process and
that best understood the candidates and the requirements
of the
position. This however cannot be so in that the SGB itself
specifically mentioned that it would be comfortable with any
of the
candidates. The order on the list of recommendations was therefore
irrelevant, and whether the HOD placed significance on
any criteria
is a fact not known.
[34]
A further difficulty with the Commissioner’s reasoning is that
despite fully appreciating the approach that the HOD ought
to have
taken in making appointments from the list of the SGB
recommendations, she appears to have concluded in the absence of
evidence that indeed the HOD’s decision was rational and fair.
This however cannot be a correct or reasonable approach on
the part
of the Commissioner.
[35]
The starting point is that upon
the HOD not appointing her, Pamplin had sought reasons on
8 December 2014. As at the date
of arbitration proceedings,
no reasons were furnished. Amongst her concerns was the HOD could
have made her choice without the
benefit of interview sheets, thus
prejudicing her. In regard to the failure to call or subpoena the
HOD, it is appreciated from
a long line of authorities that failure
to produce a witness who is available and able to testify and give
relevant evidence, may
lead to an adverse inference being drawn
[22]
.
[36]
The Commissioner than proceeded
to draw adverse inferences against Pamplin, and it is my view that
this approach was a misdirection
and misapplication of the question
of onus in such cases. In
Titus
v Shield Insurance Co Ltd
[23]
,
it was held that;
‘
It
is clearly not an invariable rule that an adverse inference be drawn;
in the final result the decision must depend in large measure
upon
“the particular circumstances of the litigation” in which
the question arises. And one of the circumstances that
must be taken
into account and given due weight, is the strength or weakness of the
case which faces the party who refrains from
calling the witness.’
[37]
The circumstances of the litigation in unfair labour practice
disputes such as in
casu
is that despite the onus being on the
complainant/employee to demonstrate that the failure to promote or
appoint was unfair, the
employer is in the same token, obliged to
defend attacks on the substantive and procedural fairness of its
decisions if it wishes
to avoid a negative outcome. This therefore
implies that there is an obligation on the employer to place evidence
of the fairness
of the process followed and the rationale for the
appointment/non-appointment, to satisfy a tribunal that the
appointment/non-appointment
was rational and thus fair. The employer
must demonstrate that it acted fairly, in good faith, and applied its
mind to the selection.
A conclusion that an employer acted fairly or
in good faith in making an appointment cannot be reasonable nor
rational in circumstances
where that employer places no such evidence
before a tribunal, irrespective of where the onus lies.
[38]
In such circumstances and given
the nature of the litigation before the Commissioner, if any adverse
inference was to be drawn by
the failure to call available witnesses,
then it should have been drawn against the Department for its failure
to call the HOD,
not against Pamplin for failing to subpoena the
HOD
[24]
.
For the Commissioner therefore to have required of Pamplin to have
subpoenaed the HOD to demonstrate that her decision was fair
failing
which an adverse inference was drawn against her is akin to requiring
of her to call the HOD to rebut her own case. This
approach is a
misapplication of the question of onus and cannot therefore be
reasonable.
[39]
It is trite that Commissioners
acting under the auspices of the CCMA or Bargaining Councils in terms
of the LRA are expected to
act inquisitorially or investigatively
irrespective of the nature of representation at those proceedings.
This obligation is placed
on Commissioners by virtue of the
provisions of section 138(1) of the LRA, which provides that
Commissioners may conduct the arbitration
proceedings in a manner
considered appropriate in order to determine the dispute fairly and
quickly but must deal with the substantial
merits of the dispute with
a minimum of legal formalities. This approach places an obligation on
Commissioners where necessary,
to step into the arena and to direct
the proceedings in the interests of justice
[25]
.
[40]
In this case, there is no suggestion from the record that Pamplin was
also warned that such an adverse inference would be drawn
against her
for failing to subpoena the HOD (
albeit
she had no obligation
to call the HOD). Furthermore, it does not appear that the
Commissioner impressed upon the Department
to call the HOD. Even if
the Department did not wish to call the HOD, nothing prevented the
Commissioner from acting within her
powers in accordance with the
provisions of section 142 (1) of the LRA, to issue a subpoena against
the HOD. Given the nature of
arbitration proceedings, it would not be
in the interests of justice to draw inferences from a failure to call
a witness without
warning the parties, irrespective of the nature of
representation at those proceedings.
[41]
In the light of these glaring failures and irregularities, it cannot
in my view be said on the explication of the review test
in
Goldfields
, that the Commissioner afforded Pamplin in
particular, a fair opportunity of a fair trial of the issues or dealt
with the substantial
merits of the dispute prior to drawing negative
inferences against her.
[42]
The Commissioner equally misapplied the law in regard to the issue of
onus, and also unreasonably drew negative inferences
against Pamplin.
To that end, and in the light of this irregularities, it cannot be
said that the decision reached by the Commissioner
that Pamplin had
not discharged the onus of proving that her non-appointment
constituted an unfair labour practice falls within
a band of
reasonableness. The Commissioner’s decision is not one that
another decision-maker could reasonably have arrived
at based on the
evidence placed before her. To the extent that this is the case, it
follows that the award ought to be set aside.
[43]
Given the nature of these disputes and the omissions already
outlined, there is essentially is no basis upon which this Court
can
substitute the decision of the Commissioner. The only alternative is
for this matter to be remitted back to the ELRC for a
reconsideration
de novo
.
[44]
I have further had regard to the requirements of law and fairness,
and I am satisfied that there is no basis for a cost order
to be made
against either party.
Order:
[45]
Accordingly, the following order is made;
1.
The late filing of the answering affidavit to the review application
by the First Respondent is condoned.
2.
The arbitration award issued by the Third Respondent is reviewed
and
set aside.
3.
The dispute between the parties is remitted back to the Second
Respondent to be heard afresh before a Commissioner other than the
Second Respondent.
4.
There is no order as to costs.
_____________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. S Harvey.
Instructed
by:
Edmund Booth of Booth Attorneys
For
the First Respondent:
Adv. B Joseph
Instructed
by:
The State Attorney (Pam Mlapi)
[1]
See
Albany
Bakeries Ltd v Van Wyk & others
(2005) 26 ILJ 2142 (LAC) at para 25.
[2]
Promotion
of Access to Information Act, 2000
of 2002
[3]
Act 76 of
1998
[4]
Act 76 of
1998
Appointments and
filling of posts-
(1) In the making of any appointment
or the filling of any post on any educator establishment under this
Act due regard shall
be had to equality, equity and the other
democratic values and principles which are contemplated in section
195 (1) of the Constitution
of the Republic of South Africa, 1996
(Act No. 108 of 1996), and which include the following factors,
namely—
(a) the ability of the candidate; and
(b) the need to redress the
imbalances of the past in order to achieve broad representation.
[5]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) at para 110.
[6]
Gold Fields
Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and
Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC)
.
[7]
at para 16
[8]
at para 14
[9]
At para 20
[10]
Defined as;
‘
Unfair labour practice’
means any unfair act or omission that arises between an employer and
an employee involving —
(a) unfair conduct by the employer
relating to the promotion, demotion, probation or training of an
employee or relating to the
provision of benefits to an employee.'
[11]
Act 66 of 1995 as amended
[12]
Act 55 of 1998, as amended
[13]
See
Department
of Justice v CCMA & Others
[2004] 4 BLLR 297
(LAC);
De
Nysschen v General Public Service Sectoral Bargaining Council &
Others
[2007]
5 BLLR 461
(LC)
[14]
(2013) 34 ILJ 1120 (LAC)
[15]
Justice v CCMA & others
(2004) 25 ILJ 248 (LAC);
[2004] 4 BLLR 297
;
Goliath
v Medscheme (Pty) Ltd
[1996]
5 BLLR 603
(IC) at 609-610, where it was held that;
‘
Inevitably,
in evaluating various potential candidates for certain position, the
management of an organization must exercise discretion
and form an
impression of those candidates. Unavoidably this process is not a
mechanical or mathematical one where a given result
automatically
and objectively flows from the available pieces of information. It
is quite possible that the assessment made of
the candidates and the
resultant appointment will not always be the correct one. However,
in the absence of gross unreasonableness,
which leads the court to
draw an inference of mala fides, this court should be hesitant to
interfere with the exercise of management’s
discretion.’
[16]
See Law
@work (4
th
Ed) A Van Niekerk et al (LexisNexis) at p205
[17]
George v Liberty Life
Association of Africa Ltd
(1996)17
ILJ 871 (LC)
[18]
See
City of Cape Town v SA
Municipal Workers Union on behalf of Sylvester and Others
(2013) 34 ILJ 1156 (LC) at para 19;
Department
of Justice v Commission for Conciliation, Mediation and Arbitration
and Others
(2004) 25 ILJ
248 (LAC) at para 73, where it was 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...”
[19]
See
Ndlovu v Commission for
Conciliation, Mediation and Arbitration
(JR1855/14) [2016] ZALCJHB 133 (5 April 2016);
National
Commissioner of the South African Police Service v Safety and
Security Sectoral Bargaining Council and Others
[2012] 6 BLLR 596
(LC); (2012) 33 ILJ 1933 (LC);
Sun
International Management (Pty) Ltd v CCMA And Others (LC)
(Unreported Case No Jr 939/14, 18-11-2016);
National
Commissioner of the SA Police Service v Safety and Security Sectoral
Bargaining Council and Others
(2005) 26 ILJ 903 (LC)
[20]
Ndlovu v Commission for
Conciliation, Mediation and Arbitration and Others
(2000) 21 ILJ 1653 (LC) at 1655-6 (at paras 11-12)
[21]
See also
Arries v CCMA &
others
(2006) 27 ILJ 2324
(LC) at para 17
[22]
See
ABSA Investment
Management Services (Pty) Ltd v Crowhurst
(2006)
27 ILJ 107 (LAC) at para 14;
UPUSA
OBO Khumalo v Maxiprest Tyres (Pty) Ltd
[2008] JOL 22873
(LC) at para 30; Tshishonga
v
Minister of Justice and Constitutional Development and another
(2007) 28 ILJ 195 (LC), where it was held that;
"But an adverse inference must
be drawn if a party fails to testify or place evidence of a witness
who is available and able
to elucidate the facts as this failure
leads naturally to the inference that he fears that such evidence
will expose facts unfavourable
to him or even damage his case."
[23]
1980 (3) SA 119
(A) at
133 E-F
[24]
See
Bargaining Council for
the Furniture Manufacturing Industry, KwaZulu-Natal v UKD Marketing
CC and Others
(2013) 34
ILJ 96 (LAC), where it was held that
‘…
an adverse inference
will be drawn against a party for failing to testify only if the
evidence of the other party calls for reply.
It is a prerequisite to
the application of the rule that an adverse inference should be
drawn from a party’s failure to
call a witness/es that the
evidence that party faces must have been of such a nature that, at
the time the other party closed
its case, there was sufficient
evidence to enable the court to say, having regard to the absence of
any explanation, that the
other party’s version was more
probable than not”.
[25]
See
Consolidated Wire
Industries (Pty) Ltd v CCMA
[1999] 10 BLLR 1025
(LC);
Land
Bank v Nowosenetz NO and Others
(2013) 34 ILJ 2608 (LC) at para 11