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[2019] ZALCJHB 91
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Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (JR369/15) [2019] ZALCJHB 91 (10 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 369-15
Not Reportable
In
the matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY First
Applicant
SAMWU
OBO LR MABOSHEGO Second
Applicant
And
SALGBC
First
Respondent
M
M LEGODI
N.O. Second
Respondent
IMATU
OBO
PIETERSE Third
Respondent
Heard:
22 August 2018
Delivered:
10 May 2019
JUDGMENT
WHITCHER
J
[1]
The applicants seek to have reviewed and set aside the arbitration
award granted in favour
of Mr Pieterse on 12 January 2015 under case
number GPD 071311. The arbitrator found that the applicant
municipality committed
an unfair labour practice when it did not
shortlist Mr Pieterse for the post of Operations Officer, and awarded
Mr Pieterse protected
promotion against that post from the date of
the second applicant’s appointment to the position.
[2]
The grounds of review are limited to questions of jurisdiction and
exceeding powers, namely
that Mr Pieterse’s matter constituted
an unfair discrimination dispute, which the bargaining council lacked
jurisdiction
to entertain and the arbitrator exceeded her powers in
granting him protected promotion.
The
facts before the arbitrator
[3]
Mr Pieterse commenced employment with the municipality in 1997. In
1999 he qualified and
was appointed as an artisan plumber with an N3
and Trade Test: Plumbing. Over the years, he also secured certificate
courses
with
the municipality: a National Certificate: Supervision of Water
Reticulation, NQF Level 4 and a National Certificate: Sanitation
Project Co-ordination, NQF5.
[4]
Fifteen years later and after repeated acting stints in the post of
Operations Officer,
he was still in his substantive post, having
failed twice to reach the short-list for the post of Operations
Officer purely on
the basis of demographics.
[5]
In 2013, when he was again not shortlisted for the post, he referred
an unfair labour practice
dispute to the bargaining council, and his
matter came before the second respondent.
[6]
The advertisement for the post stated that the minimum requirements
were: N3/Trade Test
Plumbing and relevance experience. The advertised
core functions included planning and assigning tasks,
quality
control
of all works and managerial functions.
[7]
Mr Pieterse’s case at the arbitration was simple and a classic
unfair labour practice
dispute. He led evidence which demonstrated
that he more than qualified for the post in terms of its minimum
requirements and,
at the time of the arbitration, he was still acting
in the post, the successful candidate (LR Maboshego), having been
sent to another
depot for some undisclosed reason. More
significantly, the successful candidate did not possess the minimum
requirements of the
post. According to the successful candidate’s
job application and the supporting documents, he had neither an N3 or
Trade
Test: Plumbing. He had only certificates courses, a National
Certificate: Supervision of Water Reticulation, NQF Level 4 and a
National Certificate: Sanitation Project Co-ordination, NQF5. Mr
Pieterse explained that an N3 is a three-year technical college
qualification and a pre-requisite for a Trade Test: Plumbing. He
further explained that the core functions of the post, as advertised,
required plumbing experience. The successful candidates’ job
application disclosed no plumbing experience.
[8]
In these circumstances, Mr Pieterse submitted, the municipality’s
failure to short-list
him was grossly unfair. More significantly, the
municipality’s decision to appoint the successful candidate
further contravened
its own policy in that it failed to adhere to the
minimum requirements for the post.
[9]
The municipality, instead of answering Mr Pieterse’s
allegations (which established
a strong prima facie case of an unfair
labour practice), sidestepped this issue and sought refuge in a
defence based solely on
demographics. The municipality’s
witnesses spent the entire arbitration leading long evidence about
its purported equity
plan and disproportionate demographics. When
pushed during cross-examination to deal with the real dispute, the
witnesses took
a mendacious approach. Clearly, as an afterthought and
in a garbled evasive fashion, they tried to claim that the minimum
requirements
of N3/Trade Test: Plumbing did not actually mean
N3/Trade Test: Plumbing, and that the core functions of the post did
not really
require plumbing experience, despite the core functions
interpreted in light of the minimum requirements clearly contemplated
plumbing
experience.
[10]
The upshot of their evidence was that they never applied their minds
to the minimum requirements and
core functions of the post at all.
They
only
looked at demographics, and, in the process, failed to appreciate
that affirmative action measures are defined as measures designed
to
ensure that
suitably
qualified people
from
designated groups are equitably represented in all occupational
categories and levels in the workforce of a designated employer.
[11]
The fact that the municipality chose to respond to a real unfair
labour practice dispute with a mendacious
equity defence did not
transform Mr Pieterse’s dispute into an unfair discrimination
dispute.
[12]
It must follow from all the above that the
outcome
of the award, namely a finding that the applicant committed an unfair
labour practice is not liable to be set aside on review.
The fact
that the arbitrator incorrectly and unnecessarily in the process of
reaching such a conclusion forayed into questions
about the validity
of the equity plan does not detract from reasonableness of such a
finding.
[13]
The only ground of review which has merit lies against the
arbitrator’s decision to award protective
promotion.
In
KwaDukuza
Municipality v SALGBC & Others
(2009)
30 ILJ 356 (LC) the court ruled that so-called protected promotion is
merely a disguised form of compensation, which may
not be granted in
the absence of proof that the employee has suffered an actual loss,
and is unlawful if it exceeds the one-year
limit on compensation
prescribed by the LRA. The award of protected promotion was
substituted by an award of compensation equal
to 5 months’
salary.
[14]
In the present case, while I accept that Mr Pieterse is highly
qualified and experienced, and
was not granted a fair chance to
compete for the post, there is insufficient evidence on record to
hold that, but for the municipality’s
unfair conduct, he would
have been promoted. There is no evidence on record about the merits
or otherwise of the other candidates
who applied for the post.
Moreover, in the end, the prerogative to appoint lies with employers,
as long as they comply with the
basic tenets of fairness, which is,
adhere to the minimum requirements of the post, and, where
appropriate, grant suitable candidates
a fair opportunity to compete
for the post.
[15]
The appropriate remedy at the time of the arbitration was an order
directing the applicant to re-do
the appointment process from the
shortlisting stage, and this still appears to be the most sensible
and practical approach considering
Mr Pieterse was still acting in
the post at the time of the arbitration.
Order
1.
The arbitration
award that the applicant committed an unfair labour practice against
the third respondent (Mr Pieterse) is confirmed
on review.
2.
The award granting
Mr Pieterse protected promotion is reviewed and set aside, and
substituted by an award that the applicant must
re-do the appointment
process from the shortlisting stage.
3.
There is no order as
to costs.
________________________________
B
Whitcher
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicants:
NA
Cassim SC,
instructed by Werkmans Attorneys
For
the Third Respondent: Lynette
Burns-Coetzee, IMATU