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[2019] ZALCCT 13
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South African Teachers Union obo Rose v Western Cape Education Department and Others (C181/2017) [2019] ZALCCT 13 (9 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C 181/2017
In
the matter between:
THE
SOUTH AFRICAN TEACHERS UNION
obo
GEORGE ROSE
Applicant
and
THE
WESTERN CAPE EDUCATION DEPARTMENT
First Respondent
THE
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
COMMISSIONER
J.P HANEKOM
N.O
Third
Respondent
Heard:
2 August 2018
Delivered:
9 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The Applicants seek an order reviewing and setting aside the
arbitration
award issued by the Third Respondent (Commissioner) dated
6 February 2017. In the arbitration award, the Commissioner
dismissed a claim that the failure by the First Respondent
(Department) to promote the employee (Mr George Rose), constituted an
unfair labour practice. The Department has opposed the review
application.
[2]
Rose is employed as a Human Resources Clerk in the Department. In
November 2015,
the Department had advertised a post of Human
Resources Practitioner (Salary level 8). Rose’s application was
successful
and he had received a letter of appointment dated
18 December 2016. The appointment was to take effect from
1 January 2016
on a 12 months’ probation.
[3]
Rose commenced employment in his new position. The Department’s
case is that it was discovered that Rose’s appointment was in
error because he did not meet the requirements of the post,
hence the
appointment was not loaded onto the Persal System. Through the Union
SAOU, Rose then lodged a formal grievance in February 2016.
[4]
The common cause facts are that the Department’s Director of
Recruitment
& Selection, Mr Meyer, had recommended the
appointment of Rose capture onto Persal, whilst Mr Carolus, the
Department’s
Chief Director, Human Resources, had not accepted
the recommendation. Instead, Carolus had directed that the
appointment be retracted
with immediate effect, and that Rose be paid
an acting allowance for the period 1 January 2016 to
31 March 2016,
which was further extended to 30 June 2016.
On 30 June 2016, a letter was sent to Rose confirming the
rescission
of the decision to appoint him. He was to revert to his
previous position.
[5]
Following requests for the reasons that Rose’s appointment was
not
confirmed, the Department advised that Rose did not have the
necessary qualifications for appointment to the post, as he did not
possess a three-year degree with 360 credits. It was contended that
he only possessed an advanced diploma with 120 credits. Rose
however
maintained that he had acquired his qualifications in Advanced
Diploma in Management (ADM) through the Recognition of Prior
Learning
(RPL through the University of Western Cape (UWC) ), a qualification
that met the requirements for the post.
[6]
Rose with the assistance of SAOU then referred a dispute to the
General
Public Service Sector Bargaining Council (GPSSBC) on
19 September 2016. When attempts at conciliation failed on
20 September 2016,
the dispute came before the Commissioner
for arbitration.
The
arbitration proceedings and the award:
[7]
Evidence on behalf of Rose in support of his case of an unfair labour
practice was led by Mr Vincent Morta, who is employed by the
University of Western Cape as Director: Quality Assurance &
Business
Intelligence. His main role is to advise the Faculties and
Senate of University on programme accreditation and evaluation, as
well
as on RPL at Post Graduate Level.
[8]
Morta’s testimony was essentially that Rose had obtained his
ADM
with 120 credits through RPL, and that the ADM had the same exit
level 7 as a Bachelor’s Degree. According to Morta, this
meant
that Rose as a middle manager could perform with the same
competencies in the field of management as a person with a Bachelor’s
Degree. According to Morta, the requirements of a three-year
degree/diploma were comparable with the ADM, and Rose therefore
met
the requirements of the post.
[9]
Evidence on behalf of the Department was led by its Personnel
Officer:
Evaluation and Qualifications, Mr Rodney Floris, whose
testimony was merely meant to restate the difference between the ADM
and
a three-year degree insofar as the credits for the qualifications
were different.
[10]
The Commissioner having heard the evidence of Messrs Morta and
Floris, and further having
taken into account the submissions made on
behalf of the parties concluded that;
10.1
On the evidence of Morta, an ADM qualification was comparable and of
similar status as a Bachelor’s
Degree, but that status did not
award credits. It was not however for UWC or Morta to dictate to the
Department as to how to advertise
posts and what the requirements of
those posts should be. It was the prerogative of the employer
to decide on how to advertise
its posts.
10.2
On the evidence of Floris, Rose’s ADM qualifications were not
similar to a three-year Bachelor’s
Degree or a National Diploma
that required 360 credits. Thus the issue was whether Rose met the
necessary requirements of the post
or not, and to the extent that the
employer enjoyed a prerogative, Carolus had made a decision not to
appoint.
10.3
Rose, upon a consideration of the evidence as a whole, had not
discharged the onus placed on
him to prove his allegations of an
unfair labour practice, as his ADM qualification was not equivalent
or the same to a three-year
bachelor’s degree even if
comparable, and he therefore did not meet the requirements for the
appointment to the post.
The
review test and evaluation:
[11]
The test on
review remains
whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach
[1]
.
In
Herholdt
v Nedbank Ltd and Another
[2]
,
the Court held that:
‘…
A result
will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before
the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to the particular facts, are not in
and of themselves
sufficient for an award to be set aside, but are only of consequence
if their effect is to render the outcome
unreasonable.’
[12]
Ultimately,
the question to be answered by this Court is whether
the
Commissioner considered the principal issue before him; evaluated the
facts presented at the hearing and came to a decision
that falls within a band of decisions a reasonable decision maker
could come to on the available material
[3]
.
[13]
As it was
also recently reiterated in
Duncanmec
(Pty) Limited v Gaylard NO and Others
[4]
,
the
enquiry into the reasonableness of a decision invariably involves
consideration of the merits. Furthermore, unreasonableness
would
warrant interference if the impugned decision is of the kind that
could not be made by a reasonable decision-maker. The review
test
therefore means that the reviewing court should not evaluate the
reasons provided by the arbitrator with a view to determine
whether
it agrees with them. Whether the court disagrees with the reasons of
the arbitrator is immaterial, as the correct test
is whether the
award itself meets the requirement of reasonableness. An award would
meet this requirement if there are reasons
supporting it
[5]
.
[14]
In
assessing whether the award of the Commissioner is vitiated by
unreasonableness, the starting point is the examination of the
requirements of the post as stipulated in the advertisement. This is
so in that 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
[6]
.
This implies that the onus is upon Rose in this case, to lay the
evidentiary foundation for his claim of an unfair labour practice,
and
inter
alia
,
demonstrate that he met the requirements of the post. Ultimately, if
Rose was unable to discharge that onus by demonstrating that
he met
the requirements of the post, that would be the end of the matter
[7]
.
[15]
The advertisement is to be found in Annexure ‘AB1’ to the
answering affidavit.
Under the requirements for the post, it is
stated that;
‘
A relevant
three-year degree/diploma in Human Resource Management/Public
Management or similar one year traceable experience’
[16]
Rose however contends that the Commissioner’s award was
reviewable on a variety of
grounds, including that he misconceived
the nature of the enquiry, failed to consider material evidence
placed before him, made
material errors of law resulting in
unfairness, and committed misconduct and gross abrogation of his
duties. In this regard, it
was submitted that;
i.
The Commissioner failed to carefully consider documentary and oral
evidence before
him that demonstrated that he met the requirements of
the post as advertised;
ii.
Failed to
take into account the purpose of the National Framework Policy
[8]
to which he had relied on, and the importance of RPL;
iii.
Failed to take into account that the post as advertised did not make
reference to
‘credits’ and how these had a bearing on the
recognition of his qualifications
iv.
Failed to take into account that the post as advertised made
reference to ‘
relevant three-year degree or diploma in Human
Resources management/Public Management or similar one year traceable
experience’.
[17]
I did not understand Rose’s case to be that he possessed the
qualification of a relevant
three year degree/diploma in Human
Resources Management/Public Management, other than his contention
that his ADM was similar to
a bachelor’s degree. Furthermore,
to the extent that he sought an interpretation of what ‘
similar
one-year traceable experience’
meant, any interpretation in
that regard had to be within the context of evidence in regards to
his traceable experience. It was
common cause that he did not lead
any evidence in regards to his experience, and in my view, any
opinion expressed by Morta in
regards to what that concept meant
without supporting evidence in respect of Rose’s experience was
irrelevant. Without Rose’s
evidence, it is difficult to
appreciate how the Commissioner could have arrived at a decision that
by virtue of Rose’s ADM
he qualified for the post by reason of
traceable experience.
[18]
In the answering affidavit, Rose’s qualifications were said to
be limited to ADM,
which is a one-year course (if completed on a
full-time basis), and which only carried 120 credits. In the replying
affidavit,
Rose chose not to respond specifically to the averments
made in relation to his qualifications, and instead contended that
arguments
would be tendered at the hearing to ‘flesh out the
responses’. It is trite that a case is made out in the
pleadings
and not in the heads of argument. It is either there is a
response to allegations made in the answering affidavit or not.
[19]
Mr MacRobert for the applicants had on 1 August 2018, and a
day before the hearing
of the matter, submitted a ‘Supplementary
Note’. In the Supplementary Note, it was contended that upon a
perusal of
the transcript and the record, it came to MacRobert’s
attention that Floris in his evidence had relied on certain
provisions
of the 2000 Regulations, which had since been replaced by
the 2014 Regulations as contained in the Government Gazette No 38116
of 17 October 2014. It was argued that the substance of
Floris’ testimony was entirely misplaced, misleading and
based
on an incorrect set of Regulations and premise, and that the
Commissioner, even though he had regard to the correct Regulations,
had selectively focussed on Regulation 41, and entirely misconstrued
and misinterpreted the meaning, intent and purport of those
Regulations.
[20]
Counsel for the Department, Mr Nyman had strenuously objected to the
Note, contending that
new issues and grounds of review were being
raised therein, which was impermissible at that late stage of the
proceedings.
[21]
It is trite
that
in
application proceedings the affidavits constitute not only the
pleadings but also the evidence. An applicant must make out his
case
and set out sufficient facts in his founding affidavit, and must
stand or fall by the allegations contained therein
[9]
.
[22]
In
the arbitration proceedings, Floris in his evidence had referred to
the 2000 Regulations
[10]
,
and had further made reference the Council on Higher Education’s
policy contained in the Higher Education Qualifications
Sub-Framework, in support of his contentions that there was a
difference in credits in relation to qualifications, which the
Department
had always taken cognisance of.
[23]
In the
supplementary affidavit, and in specifically dealing with Floris’
evidence, no mention is made that Floris had referred
to incorrect
Regulations, despite reference being made to his evidence
[11]
.
No such similar allegations were raised in the replying affidavit,
let alone the heads of argument. In any event, it is trite
that a
case cannot be made out in the replying affidavit or the heads of
argument.
[24]
When the Note was sought to be placed before the Court, the
applicants were warned that
should it turn out that indeed the facts
raised in the it were new and not pleaded, a costs order might follow
in that regard.
It is correct as pointed out by Mr Nyman that the
supplementary note merely seeks to introduce new issues and
constitutes a new
ground of review, and these are matters that were
not pleaded. In the absence of leave from the Court to introduce
those new issues,
the supplementary note constitutes an irregular
step which ought to be met with a costs order.
[25]
In the heads of argument, it was further submitted on behalf of Rose
that he had acquired
ADM through RPL, which is a process through
which non-formal and informal learning are measured, mediated for
recognition across
different texts, and certified against the
requirements for credit, access, inclusion or advancement in the
formal education and
training system or workplace. He contended that
since he had acquired his ADM through the UWC, which had an NQF exit
level 7, thus
making his qualification ‘similar’ to that
of someone with a bachelor’s degree, which has the same NQF
exit level.
[26]
The Department in opposing the review application contends that the
grounds relied upon
by Rose were legally and factually not
sustainable as the Commissioner had correctly reasoned that whilst an
ADM was comparable
with a Bachelor’s Degree and at the same
exit level 7, they were not similar given that the ADM only required
one-year full
time study that carried 120 credits, whilst a
Bachelor’s Degree was a three year degree that carried 360
credits.
[27]
As already indicated, and further as per the understanding of the
Commissioner in regards
to what he was required to determine, the
only issue was whether Rose had the necessary/relevant qualifications
for the post or
not. To the extent that the Commissioner had
considered this issue within the context of the evidence led, and
came to a conclusion
that a qualification of ADM was not equivalent
to a Bachelor’s Degree, I fail to appreciate how it can be said
that the he
had misconstrued the nature of the enquiry.
[28]
It needs to
be added that the nature of the enquiry obviously had to be dictated
to by what the requirements of the post were as
per the
advertisement, and the reason that Rose’s appointment was
retracted. The appointment was retracted because Rose did
not have a
Bachelor’s Degree which carried 360 credits. The requirement of
the 360 credits was not invented or imposed by
the Commissioner or
added as an extra requirement or change by the Department for that
matter. It was a requirement stipulated
in the National
Qualifications Act
[12]
and the
2014 Regulations as referred to by Floris. The Act makes provision
for RPL under paragraph 66, whilst a Bachelor’
Degree is
described as a qualification at NQF Exit level 7, with a minimum
total credits of 360.
[29]
At most, Morta conceded that an ADM does not qualify as a bachelor’s
degree due to
differences in credits, even if the two qualifications
were comparable. As further pointed out, nothing turned on Morta’s
interpretation of the word ‘
similar’
as contained
in the advertisement. That was purely his opinion in regards to
comparisons between an ADM, which was essentially
a one year
certificate, which could not clearly be similar to a three-year
degree or diploma. Morta could not attest to Rose’s
experience
or ability to perform the tasks at the managerial level he had
contended, and as already indicated, in the absence of
evidence by
Rose, his abilities at any level were not ventilated.
[30]
Had the Department specifically mentioned in the advertisement that
qualifications obtained
through the RPL would be a consideration,
that would have been a different matter, and Rose would have had
cause to complain of
unfairness Furthermore, any comparisons of an
ADM with a National Diploma did not appear to be a matter pursued by
Rose.
[31]
In the light of the above factors, any suggestion that the
Commissioner ignored material
facts and the evidence pertaining to
extraneous factors he was not required to consider is without merit.
There is no basis to
conclude that the Commissioner ignored the
evidence of Morta or the material presented in that regard. The
Commissioner clearly
dealt with that evidence in the award, and
within the context of Morta’s expertise and confines of the
university.
[32]
Equally so, any suggestion that the Commissioner committed
gross misconducted or
abrogation of his duties is without merit, as
the Commissioner was only required to deal with the substance of the
merits of the
matter and the facts placed before him.
[33]
It was further alleged that the Commissioner committed misconduct or
acted in an unprofessional
manner when he mentioned to the parties
the amount he earned when writing award. It was of course unnecessary
for the Commissioner
to mention that issue as it was irrelevant to
the proceedings. The issue however remains what distorting effect
this had on the
final outcome arrived at or the manner with which the
proceedings were conducted. If it did not have any effect as I
believe to
be the case, then it should be accepted that ultimately,
the Commissioner afforded both parties an opportunity to state their
respective
cases.
[34]
The issue of whether there was a need to consult with Rose when the
appointment was retracted
is neither here nor there. When the
appointment was retracted, Rose was placed in an acting position
until 30 June 2016.
At most, the Department owed him a
courtesy by explaining the circumstances of the retraction, which it
did. The Department had
made an error in appointing him as it had
acted contrary to applicable statutes and regulations, as his
qualifications did not
met the statutory requirements to qualify as a
bachelor’s degree. It was not for the Department at the time of
the appointment
or selection to look at other extraneous factors such
as whether his ADM was equivalent or comparable to a bachelor’s
degree.
Any appointment was to be made strictly in accordance
with the advertisement, which was whether a candidate had a relevant
three-year degree/diploma in Human Resource Management/Public
Management or not.
[35]
In the end, I am satisfied that there is no basis to interfere with
the award, and that
application for review ought to fail. It is
apparent from the Commissioner’s award that he considered the
principal issue
before him, gave the parties an opportunity to state
their respective case,
evaluated the facts
presented at the hearing and came to a decision
that falls
within a band of decisions a reasonable decision maker could come to
on the available material.
[36]
I have further had regard to the considerations of law and fairness
in regards to the issue
of costs. I have already determined
that the applicants are liable for the costs in regard to the filing
of the ‘Supplementary
Note’. I am however of the view
that any costs in regards to the review application itself are not
warranted.
[37]
Accordingly, the following order is made;
Order:
1.The
Applicants’ application for a review of the Third Respondent’s
arbitration award issued on 6 February 2017 is
dismissed.
2.The
Applicants are ordered to pay the First Respondent’s costs in
respect of the ‘Supplementary Note’ that was
filed and
served on 1 August 2018.
3.There
is no costs order made in respect of the review application.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the applicants: J MacRobert of John MacRobert Attorneys
For
the Respondent:
R Nyman, instructed by the Office of the State Attorney,
Cape Town
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC) at para 110.
[2]
(2013) 34 ILJ 2795 (SCA) at para 25.
[3]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14
[4]
[2018] ZACC 29
;
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018 (6) SA 335
(CC); (2018) 39 ILJ 2633 (CC)
[5]
Duncanmec
(Pty) Limited v Gaylard NO and Others supra
at
para 41 - 43
[6]
See
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.’
[7]
See
Ndlovu
v Commission for Conciliation, Mediation & Arbitration &
Others
(2000)
21 ILJ 1653 (LC) at 1655-6, where it was held that;
“
[11]
In my view, the questions which
the commissioner asked in the first paragraph of that
quotation were
wholly justifiable questions in relation to a dispute over a matter
of promotion. It can never suffice in relation
to any such question
for the complainant to say that he or she is qualified by
experience, ability and technical qualifications
such as university
degrees and the like, for the post. That is merely the first hurdle.
Obviously a person who is not so qualified
cannot complain if they
are not appointed.”
[8]
Published
in Government gazette No 38116 dated 17 October 2013
[9]
See
Molusi
v Voges N.O.
2016 (3) SA 370
(CC) at paras 27-8;
President
of the RSA v South African Rugby Football Union
2000 (1) SA 1
(CC) para 150.
[10]
Transcript at lines 19 – 25 at page 105
[11]
Paragraphs
8 – 17 of the Supplementary Affidavit
[12]
Act
No 67 of 2008