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[2025] ZALCCT 27
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George Municipality v IMATU obo Bennet and Others (C385/2022) [2025] ZALCCT 27 (24 April 2025)
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not
reportable
Case
no:
C385/2022
In
the matter between:
THE
GEORGE MUNICIPALITY
Applicant
And
IMATU
obo AVRIL BENNET
First
Respondent
SAMWU
obo NOZUKO WILLIAMS
Second Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
COMMISSIONER
ELVISO ADAMS N.O
Fourth Respondent
JENNY
KIEWIT
Fifth
Respondent
Date
of Hearing:
28 June 2024
Date
of Judgment:
24 April 2025
JUDGMENT
CASSELLS
AJ
Introduction
[1]
The Applicant seeks an order that the arbitration award that is the
subject matter of this application be reviewed and
set aside, more
specifically, that the award that the Applicant committed an unfair
labour practice in shortlisting and appointing
the Fifth Respondent
(hereinafter referred to as “Kiewit”) into the position
of Human Resources Manager (OHS and EAP)
when she did not meet the
minimum NQF Level 7 qualification, and in the process deprived First
Respondent’s member Avril
Bennet (“Bennet”) from
promotion, be substituted with an order that the appointment of Fifth
Respondent during or about
August 2015 in the position of Manager:
Human Resources be upheld as a lawful appointment in terms of section
66 of the Municipal
Systems Act, 2 of 2000, alternatively, that the
matter be remitted to the Third Respondent for the arbitration
between the Applicant,
the First and Second Respondents and the Fifth
Respondent be heard
de novo
before a commissioner other than
the Fourth Respondent.
[2]
The review application was initially opposed by both the First
Respondent, IMATU on behalf of its member Bennet and the
Second
Respondent, SAMWU on behalf of its member Nozuko Williams
(“Williams”).
[3]
At the time the matter was argued, Kiewit had retired from the
Applicant’s employ and consequently the relief setting
aside
Fifth Respondent’s appointment had become moot and Second
Respondent withdrew its opposition to the review application
due to
this fact.
Background
[4]
The Applicant advertised the post Manager Human Resources (OHS and
EAP), which stipulated, amongst other requirements,
that a NQF level
7 qualification in occupational health and safety management and
relevant wellness related qualifications, and
five years relevant
experience, was required for appointment into the post in 2015.
Bennet, Williams and Kiewit applied and were
shortlisted with two
other candidates. Kiewit scored the highest in the interview process
and was appointed into the post. Bennet
met all the requirements and
achieved the second highest score in the interview process. Williams
met the minimum qualification
requirements, although it was disputed
whether she had five years relevant experience, and she ranked fourth
amongst the shortlisted
candidates.
[5]
In 2019, during an audit of the Applicant's Human Resources
Department, Bennet and Williams became aware that Kiewit did
not have
an NQF level 7 qualification when she was appointed as she was short
of one subject for her NQF level 7 qualification.
Neither the long
list nor the short list that was compiled at the time of the
recruitment process recorded the fact that Kiewit
did not have a NQF
level 7 qualification, and no condition was stipulated in her
appointment letter that she was required to obtain
the qualification
within a reasonable time.
[1]
[6]
Armed with this information, Bennett and Williams contended that
Kiewit should not have made the long list, should not
have been
shortlisted and should not have been appointed in circumstances where
she did not meet the minimum requirements for the
post. Through their
respective trade unions, Bennet and Williams independently referred
alleged unfair labour practice disputes
against the Applicant
relating to promotion, contending that Kiewit did not meet the
minimum qualifications in terms of the advertisement
and that her
appointment be set aside. They both claimed that they should be
appointed retrospectively to the post.
[7]
The separate disputes referred by IMATU and SAMWU were consolidated
prior to the arbitration of the matter.
[8]
The arbitration process was conducted over several days and Bennet
and Williams presented evidence in support of their
unfair labour
practice claims. Second Respondent also called another employee of
the Applicant, Mfundo Mtamo (“Mtamo”)
as a witness in
support of Williams’s claim. The Applicant presented the
evidence of its Human Resources Manager, Michael
Eksteen (“Eksteen”)
in respect of the recruitment process and the appointment of Kiewit.
The
Arbitration Award
[9]
The arbitration award records that the Applicant initially claimed
that Kiewit was in possession of the minimum NFQ level
7
qualification in terms of the advertisement but that this approach
changed as the case progressed and that the Applicant adopted
the
position that clause 8.4.2 of its Recruitment and Selection Policy
(“the Policy”) allowed for Kiewit to be shortlisted
and
appointed, in that it provides that "
only candidates, who
meet the minimum requirements or can be expected to meet the
requirements within a reasonable time, can be
shortlisted, unless the
law prohibits such an appointment
". The arbitration award
also records that the arbitrator was not convinced that the
Applicant's reliance on clause 8.4.2 or
the further provisions of the
Policy could be used to include Kiewit in the process as reliance on
clause 8.4.2 was not captured
in documentation relating to the
shortlist meeting and/or the Municipal Manager’s memorandum and
no endorsement to that effect
was made on Kiewit’s appointment
letter. Further, the Applicant’s witness Eksteen failed to
confidently submit the
underlying criteria used to include Kiewit
under the apparent clause 8.4.2 process, other than relying on the
incorrect reflection
on the long list and shortlist. The arbitration
award also notes that Kiewit had not completed the NFQ level 7
qualification six
years after her appointment.
[10]
The arbitrator concluded that Kiewit did not meet the minimum
requirements and that this was based on someone's omission,
whether
deliberately or not, to record that she did not have the NFQ level 7
qualification, which meant that she should not have
made the
shortlist and could not have been appointed in the position.
[11]
The arbitration award records that there are limited grounds on which
a commissioner, or a court, may interfere with
a discretion which has
been exercised by a party competent to exercise that discretion, as
the ambit of the decision-making powers
inherent in the exercising of
a discretion by a party, including the exercise of the discretion or
managerial prerogative of an
employer, should only be interfered
with, to the extent that it can be demonstrated that it was not
properly exercised, if it is
demonstrated that the discretion was
exercised capriciously, or for insubstantial reasons, or based upon
any wrong principle or
in a biased manner. It further records that
the Applicant, as a local authority, is expected to comply with the
requirements stated
in the advertisement and that if the provisions
of the Policy are relied upon to accommodate a candidate who
otherwise did not
meet the minimum requirements of the advertisement,
this should be recorded in all relevant documentation. The
arbitration award
notes that Kiewit had a national diploma in library
and information services and that her highest incomplete
qualification related
to post school education, and that accordingly
it would have been reasonable to frown upon choosing her, as the
qualification stipulated
in the advertisement was relevant to the
position and deviating from it to accommodate a qualification not
close to the position
was problematic. The arbitrator concluded that
the shortlisting committee and the Municipal Manager would have acted
differently
if they knew that Kiewit did not possess the minimum
qualification, and in the absence of any recorded information that
the long
list or shortlist committee had relied on clause 8.4.2 of
the Policy. In the circumstances, Kiewit should not have been
shortlisted
and accordingly not appointed into the advertised
position, and by allowing her to be part of the process and to be
appointed under
the circumstances amounted to an unfair labour
practice as it was based upon a wrong principle and the discretion to
appoint her
was not exercised properly. For these reasons, the
appointment of Kiewit must be set aside notwithstanding that she was
in the
position for a substantially long period and the arbitration
award concludes that it would be just and equitable that Bennet, who
was the next best candidate should be compensated with an amount
equivalent to the difference in her salary and the salary at which
Kiewit was appointed from the date of her appointment for twelve
months.
[2]
.
[12]
The arbitration award further ordered that the Applicant must
readvertise the position and that Bennet and Williams may
reapply for
that post. That relief is no longer specifically required as an
outcome of the arbitration process as Kiewit has subsequently
retired
from the Applicant’s employ.
The
Grounds of Review
[13]
The Applicant contends that the arbitrator committed a gross
irregularity and misconducted himself in a manner that is
unreasonable and culminated in the arbitration award being defective.
In its essence, the Applicant contends that the arbitrator
did not
properly consider the evidence presented in the arbitration
proceedings and the law applicable to the facts and he made
an award
that no reasonable decision maker could have made.
[14]
In its supplementary affidavit, the Applicant relied upon the
contention that there was no requirement in terms of the
Policy that
compliance with the minimum requirements as referred to in clause
8.4.2 should be reflected in the appointee’s
letter of
appointment or employment contract. The Applicant further contended
that, in terms of clause 8.4.2 of the Policy, the
Applicant had
shortlisted and subsequently appointed other employees who did not
meet the minimum requirements.
The
Merits of the Review Application
[15]
The Applicant’s averment that the arbitrator committed a gross
irregularity in the conduct of the arbitration proceedings
and/or
misconducting himself must be assessed with reference to the
overarching ground of review that the Applicant relies upon,
namely
that the decision of the arbitrator is one that a reasonable decision
maker could not make based on the facts presented
at the arbitration
and the application of the law to those facts.
The legal
principles are the following:
1.
A gross irregularity requires that the result is that the
arbitrator misconceived the nature of the enquiry or arrived at an
unreasonable
result;
2.
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;
3.
Material errors of fact (and also of law) 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;
4.
An outcome will be reasonable if the decision that the
arbitrator arrived at is one that falls in a band of decisions which
a reasonable
decision maker could make on the available material;
5.
The Labour Court on review must ascertain whether the
arbitrator considered the principal issue, evaluated the facts
presented at
the hearing and came to a reasonable and justifiable
conclusion;
6.
The Labour Court must consider the totality of the evidence
and then decide whether the decision made by the arbitrator is one
that
a reasonable decision maker could make;
7.
The questions to be asked in assessing whether there are
grounds of review are:
a.
In terms of the arbitrator’s duty to deal with the
matter with the minimum of legal formalities, did the process that
arbitrator
employed give the parties a full opportunity to have their
say in respect of the dispute;
b.
Did the arbitrator identify the dispute that was to be
arbitrated;
c.
Did the arbitrator understand the nature of the dispute to be
arbitrated;
d.
Did the arbitrator deal with the substantial merits of the
dispute;
e.
Is
the arbitrator’s decision one that another decision maker could
reasonably have arrived at based on the evidence.
[3]
[16]
In Head of the Department of Education v Mofokeng and others
[4]
the Labour Appeal Court found that:
“
Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning
of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material
factors etc must be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken
the enquiry in the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and
instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived
inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her
.”
[17]
The Constitutional Court in Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[5]
,
found that an applicant in review proceedings must establish three
things to succeed:
1.
Demonstrate that both the commissioner’s reasons and the
result of the award are unreasonable;
2.
Where some error or misdirection on the part of the
commissioner is identified, the error or misdirection caused the
result of the
award to be unreasonable;
3.
On the totality of the evidence before the commissioner and
examining the merits “in the round”, the award is
incapable
of reasonable justification, including on the basis of good
reasons not considered by the commissioner.
[18]
The reasonable decision maker test is an outcomes-based test.
Therefore, even if an arbitrator is wrong in his assessment
of
certain facts presented at the arbitration, this would not of itself
result in the arbitration award being reviewable unless
the
consequence of the incorrect recording and consideration of those
facts results in a distortion in the outcome of the arbitration.
[19]
In respect of an unfair labour practice dispute relating to the
promotion of an employee, the jurisdiction of an arbitrator
is
limited and the employer’s decision may only be interfered with
in circumstances where it is established that, in exercising
its
discretion, the employer acted arbitrarily, capriciously,
irrationally or unreasonably, or was otherwise motivated by bad faith
or the decision was made in a biased manner or it was discriminatory.
Ultimately, it is an evaluation of the fairness of the manner
in
which the employer has acted towards its employee, notwithstanding
that there is an element of subjectivity or discretion involved.
[6]
[20]
Applying these principles to the facts, the transcript of the
arbitration proceedings does not support the arbitrator’s
conclusion that
the
Applicant only decided to rely upon clause 8.4.2 of the Policy after
the commencement of the arbitration proceedings as, already
during
the cross examination of the first witness Bennet, the Applicant
placed reliance upon that clause. To this extent, the arbitration
award does not correspond with the evidence presented in the
arbitration proceedings. The arbitration award furthermore addresses
an issue that was not placed in dispute by the parties in the
arbitration proceedings, namely that, even if Kiewit were to complete
the outstanding subject to obtain the NQF Level 7 qualification, her
qualifications did not comply with the requirements of the
advertisement as they were not in occupational health and safety
management. However, this was not a matter specifically raised
by
either IMATU or SAMWU in challenging Kiewit’s appointment, and
it was not addressed in the evidence. As stated above,
the primary
dispute raised in the arbitration process was that Kiewit should not
have been appointed as she did not have the NQF
Level 7
qualification, and no condition was attached to her appointment that
she obtain the qualification within a reasonable time.
[7]
[21]
The fact that the arbitration award refers to an inaccurate
assessment of the evidence and/or an issue that was not relied
upon
by the parties in the arbitration proceedings does not of itself,
either individually or collectively, render the arbitration
award
reviewable, unless their consideration has distorted the outcome of
the arbitration award. This may only be determined upon
considering
the reasons relied upon in making the arbitration award.
[22]
The essence of the arbitrator’s finding that the Applicant had
committed an unfair labour practice in shortlisting
and appointing
Kiewit into the position of Human Resources Manager (OHS and EAP) is
that she did not meet the minimum NQF level
7 qualification, that
this was not recorded on the long list, the short list or the
Municipal Manager’s memorandum, that
no endorsement was made on
the letter of appointment and that Eksteen had failed to explain the
Applicant’s reliance on clause
8.4.2 of the Policy in those
circumstances. The latter conclusion is borne out by the transcript
of Eksteen’s evidence. Contrary
hereto, it was Bennet and
Williams’ contention that it was general practice that if
reliance was placed on clause 8.4.2 of
the Policy, this was
stipulated as a condition in the appointee’s letter of
appointment and this was not challenged under
cross examination. It
was also Mtamo’s uncontroverted evidence that when he was
appointed into a post for which he did not
have the required
qualification, his letter of appointment recorded the condition that
he obtain the qualification within a reasonable
time thereafter.
[23]
As no reference was made in any of the documentation relevant to the
appointment of Kiewit that she did not have the
qualification
required in terms of the advertisement and that the Applicant was
relying on clause 8.4.2 of the Policy in appointing
her, the
arbitrator’s decision that the Applicant committed an unfair
labour practice in appointing Kiewit despite her not
having the NFQ
level 7 qualification and thereby deprived Bennet from promotion, is
a decision that a reasonable decision maker
could have made on the
facts and the application of the law, and does not reflect either a
gross irregularity in the conduct of
the arbitration proceedings or
that the arbitrator misconducted himself.
[24]
Although the Applicant referred in its review application to alleged
financial, administrative and other implications
of the arbitration
award, this was not expanded upon in the founding affidavit or the
supplementary affidavit and no compelling
submissions were made to
interfere with the compensation awarded to Bennet in terms of the
arbitration award.
[24]
In the circumstances, the review application fails.
The
Constitutional Court has held that the
ordinary
rule that costs follow the result does not apply in labour
matters.
[8]
There are no reasons
in this matter to justify a departure from the position that a losing
party should not be mulcted in costs
in labour disputes.
[25]
The following order is made:
Order:
1.
The review application is dismissed
2.
There is no order as to costs.
G
Cassells
Acting
Judge of the Labour Court of South Africa
For
the Applicant:
Adv N Ristic
Instructed
by:
Schröter Attorneys
For
the First Respondent: E Geldenhuys
Instructed
by:
Macgregor Erasmus Attorneys Inc.
[1]
Although
Kiewit’s letter of appointment was not produced in the
arbitration proceedings, it was undisputed that her appointment
letter did not contain any reference to her not having the required
qualification or that she was required to obtain the qualification
within a reasonable time.
[2]
Bennet
had declined to be appointed and had asked for a protected
promotion, which could not be granted as no such position existed
in
the Applicant’s structures to award such a remedy.
[3]
Herholdt v Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[2013] 11 BLLR 1074
(SCA); 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)
[4]
[2015]
1 BLLR 50 (LAC)
[5]
[2007] 12 BLLR 1097 (CC)
[6]
Myburgh & Bosch, Reviews in the Labour Courts, LexisNexis, 2016,
pages 380 - 383
[7]
The
further challenges against Kiewit’s appointment were whether
she had the relevant experience required in terms of the
advertisement, but this was not seriously disputed. Williams
disputed whether the post was recognised in Applicant's organigram
at the time that the advertisement was placed, and this was found to
be unsubstantiated. In any event, in circumstances where
SAMWU
abandoned its opposition to Applicant's review application, it is
not a matter that requires further consideration.
[8]
Zungu
v Premier of the Province of KwaZulu-Natal & others (2018) 39
ILJ 523 (CC); Long v SA Breweries (Pty) Ltd & others
(2019) 40
ILJ 965 (CC)