About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2018
>>
[2018] ZALCPE 6
|
|
Member of the Executive Council, Department of Education, EC Province and Others v Education Labour Relations Council and Others (PR206/14) [2018] ZALCPE 6 (19 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: PR 206/14
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF EDUCATION, EC PROVINCE
First Applicant
THE
HEAD OF THE DEPARTMENT
DEPARTMENT
OF EDUCATION, EC PROVINCE
Second Applicant
MINISTER
OF BASIC
EDUCATION
Third Applicant
and
THE
EDUCATION LABOUR RELATIONS
COUNCIL
First
Respondent
JOHN
CHEERE ROBERTSON
N.O.
Second
Respondent
SAOU
obo MARIUS CRONJE
Third
Respondent
ERIKA
ESTERHUIZEN
Fourth Respondent
Heard:
23 November 2016
Delivered:
19 January 2018
Summary:
The commissioner’s decision that the applicant’s conduct
of changing post requirements during interviews without
notice
constituted an unfair labour practice against the third respondent
who qualified for the post in terms of the advertised
requirements
falls within bound of reasonableness. It is therefore not reviewable.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent who will be referred to as the
arbitrator in
this judgment. It is opposed by the third respondent. The application
was filed out of time and the applicants sought
condonation for the
delay. Having considered the condonation application, I am satisfied
that the applicants have shown good cause
and the delay should
therefore be condoned. The third respondent sought condonation for
the late filing of the answering affidavit.
He showed good cause and
his application stands to be granted.
Background
[2]
The factual background to this matter is that the applicants
advertised a number of vacancies in 2012. The individual third
respondent who will be referred to as the third respondent in this
judgment, as well as the fourth respondent applied and were
shortlisted for the post of the Head of Department post level 2 for
grades 4-7 at Hoër Skool PJ Olivier (the impugned position).
They were both interviewed to determine their suitability for the
position. The fourth respondent obtained the highest points,
the
panel recommended her appointment and she was appointed to the
impugned position. An appointment to the impugned position would
have
constituted a promotion to the third respondent. Aggrieved by being
overlooked for promotion, the third respondent referred
an unfair
labour practice dispute to the first respondent where the arbitrator
issued the award under review.
The award
[3]
The arbitrator analysed the evidence before him and found that the
composition of the interview panel did not comply with the
requirements of the Personnel Administrative Measures (the PAM), it
was highly irregular and procedurally defective because the
principal
of the school played two roles instead of one during the interviews.
He represented the Department of Education (the
Department) as an
observer/resource person and actively participated in the interviews
and allocated points to candidates. The
arbitrator found that the
third respondent was more suited for the post on the basis of the
advertised criteria. He further found
that the principal added the
requirement of Information Technology (IT) as he wanted the school to
be a leader in the field of
computer-based/assisted learning. It is
the added requirement which did not appear in the advertisement that
earned the fourth
respondent the highest points. The arbitrator found
the change of requirements unfair and concluded that the fourth
respondent
should not have been appointed over the third respondent
because she lacked the teaching experience in the required subjects
and
in coaching rugby but was qualified and proficient in IT. The
arbitrator rejected the applicant’s argument that the fourth
respondent’s appointment was influenced by equity on the basis
that equity cannot be used to justify a change in the advertised
criteria without notice. He found that the applicant’s conduct
of not appointing the third respondent to the impugned position
constituted an unfair labour practice relating to promotion as
envisaged in section 186 (2) (a) of the Labour Relations Act
[1]
(the LRA), both procedurally and substantively. The arbitrator
ordered that the third respondent be promoted to the impugned
position with effect from 1 January 2013.
Grounds for review
[4]
The test for review of arbitration awards issued in terms of the LRA
is whether the arbitration award is reasonable. An award
becomes
unreasonable when the arbitrator misconceives the nature of the
enquiry that he/she has to conduct or when the arbitrator
reaches a
decision which a reasonable decision-maker could not reach on the
evidence tendered at arbitration. A determination of
the
reasonableness of the award is based on the totality of the
evidentiary material before the arbitrator. The grounds for review
will be assessed against the above-mentioned test. The applicants
submitted that the arbitrator committed a gross irregularity
by
usurping the power of appointing employees. As the fourth respondent
had obtained the highest points, the arbitrator had no
sound
operational or employment equity reasons for deviating from the
common practice of appointing the candidate with the highest
points.
The applicants also submitted that the arbitrator further rendered
the award unreasonable by not applying his mind to all
the material
placed before him and taking into account irrelevant factors.
[5]
In the supplementary affidavit, the applicants substantiated the
grounds for review they sought to rely on in the founding affidavit
and added some. They submitted that the arbitrator denied them of the
opportunity of leading vital evidence of Mr Snyders, the
principal of
Hoër Skool PJ Olivier (the school). The evidence included
reasons for the points that Snyders allocated to the
third respondent
and the fourth respondent during the interviews. The arbitrator
proceeded with the arbitration although he had
been informed of the
unavailability of Snyders owing to ill health. The third respondent’s
basis of opposing the application
was that the arbitrator dealt with
the issue before him, considered evidence and gave reasons for his
correct and reasonable decision.
[6]
The applicants’ case was mainly that the arbitrator made errors
in the conduct of the arbitration which resulted in him
reaching an
unreasonable decision. It is common cause that the procedure followed
by the applicants in appointing the fourth respondent
was flawed in
that Snyders should not have been an active participant during the
interviews. He should therefore not have allocated
points to the
candidates. The arbitrator’s finding that the procedure
followed by the applicants in overlooking the third
respondent for
promotion was irregular and unfair, was not vitiated. The applicants
did not establish that the arbitrator erred
in finding that the
applicants committed an unfair labour practice by not promoting the
third respondent. His finding that the
third respondent was the most
suited candidate based on the requirements in the advertisement for
the post is supported by evidence.
The arbitrator’s finding
that it was unfair to change requirements for the post without prior
notice cannot be faulted. The
reasons for the rejection of the
applicant’s reliance on equity are sound as it is impermissible
to use employment equity
principles to justify unfair conduct. On the
evidence before the arbitrator the applicants, through their
representative, Snyders,
deliberately flouted rules to advantage the
fourth respondent at the expense of the third respondent who
qualified for the impugned
position. The record does not provide a
justification for the fourth respondent’s appointment. The
applicants’ conduct
was
mala fide
. The arbitrator’s
decision that such conduct constituted an unfair labour practice is
reasonable
[7]
The applicants submitted that the arbitrator exceeded his powers in
ordering them to promote the third respondent as the order
constituted protective promotion. They relied on the case of
Minister
of Defence and Others v Dunn
[2]
where it was held that protective promotion is not provided for in
the LRA. It was part of the public service staff code which
was
repealed before 2002. The applicants further relied on section 193 of
the LRA. The third respondent relied on the record as
well as the
arbitration award in his insistence that the relief granted by the
arbitrator is reasonable. Section 193 (4) of the
LRA empowers an
arbitrator considering an unfair labour practice dispute to determine
it on terms the arbitrator deems reasonable,
which may include
ordering reinstatement, re-employment or compensation. While
arbitrators have been given very wide powers when
granting relief for
unfair labour practices, the LRA has not expressly granted them the
power to order promotion. I am of the view,
based on principles of
interpretation of statutes, that the omission is deliberate. The
arbitrator’s decision ordering the
applicants to promote the
third respondent is unreasonable.
[8]
An order correcting the arbitration award is one of the orders sought
by the applicants. For the reasons given above, compensation
is the
appropriate relief for the unfair labour practice committed by the
applicants against the third respondent. The third respondent
sought
compensation equivalent to 12 months remuneration on the basis that
had the applicants not committed to the unfair labour
practice, he
would have been promoted and enjoyed the benefits which would have
come with the promotion for a substantial period
as his contract of
employment is not of limited duration. The applicant argued that a
quarter of what the third respondent sought
would constitute
appropriate relief. The third respondent’s argument is valid.
The third respondent suffered the prejudice
of being overlooked for
promotion unfairly and the applicants must accept that committing an
unfair labour practice has consequences.
As the applicants provided
no cogent reasons for the amount of compensation sought by the third
respondent not to be granted, the
third respondent’s argument
has to be accepted.
[9]
The applicant sought a costs order against the third respondent for
the costs they incurred as a result of the late service
of the
answering affidavit. The delay was caused by the third respondent’s
attorney who served the answering affidavit via
ordinary mail and not
by registered mail. Having considered the submissions on behalf of
both parties before me on the question
of costs, I am of the view
that both the law and fairness require that a costs order not be
granted as both parties have been partially
successful.
[10]
In the premises, the following order is made:
Order:
1.
The late
filing of the application for review is condoned.
2.
The late
filing of the answering affidavit is condoned.
3.
Paragraphs
36.1, 36.2, and 37 of the arbitration award issued by the second
respondent under case number PSES 291-13/13 EC dated
19 March 2014
are reviewed and set aside and substituted with the following:
3.1
The
applicants are ordered to pay the third respondent compensation in an
amount equivalent to 12 months’ remuneration calculated
at the
third respondent’s rate of remuneration on the date of the
commission of the unfair labour practice.
4.
No order is
made as to costs.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the Applicants:
Advocate Rawjee with
Advocate Thys
Instructed
by:
The State Attorney
For the Third Respondent:
Advocate Dyke SC
Instructed
by:
Leon Keyter Attorneys
[1]
Act 66 of 1995.
[2]
(2008) 2 All SA 14
(SCA).