REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D544/99
In the matter between
D P NDLOVU Applicant
and
CCMA First Respondent
MR AUBREY NGCOBO Second Respondent
DEPT OF SOCIAL WELFARE AND
POPULATION DEVELOPMENT Third Respondent
JUDGMENT
WALLIS AJ
[1] The applicant in this case is an employee of the Department of
Social Welfare and Population Development. It is apparent from the
documents that over a number of years he has felt a sense of grievance in
regard to questions of promotion. Ultimately, his feeling of grievance was
such that he raised a dispute concerning an unfair labour practice in terms
of item 2(1)(b) of Schedule 7 to the Labour Relations Act which defines as
one of the residual unfair labour practices in terms of the Act, any unfair
conduct of the employer relating to the promotion of an employer.
[2] In terms of item 3(1)(b) of that schedule that dispute was referred to
a Commissioner and when it remained unresolved it was referred
for arbitration by a Commissioner in terms of item 3(4) of Schedule
7. The arbitration was held in Pietermaritzburg on 29 April 1999.
The person appointed to act as Commissioner by the CCMA was
Mr Aubrey Ngcobo. The applicant was represented by an attorney
and there was no appearance on behalf of the Department. That
want of appearance is explained in the affidavits before me on the
grounds that the Department was not properly notified of the
arbitration hearing. Nothing, however, turns upon that for present
purposes.
[3] After the arbitration hearing, Mr Ngcobo handed down an award in
which he found that the Department had not committed an unfair labour
practice in failing to promote the applicant and he dismissed the
application.
[4] The matter comes before me by way of an application in terms of
section 145 of the Labour Relations Act for that award to be
reviewed and set aside. The order which the applicant asks me to
make is not only to set aside the award but to substitute in its place
an order directing the Department to promote him to the position of
director.
[5] Whilst it is fair to say that the correctness of some aspects of the
judgment of the Labour Appeal Court in Carephone (Pty) Ltd v
Marcus n.o. and Others ( (1998) 19 ILJ 1425 LAC) in regard to the
standard of review is open to debate, I propose for the purposes of
this application to apply the test laid down in paragraph 37 of the
judgment and to ask myself whether there is a rational objective
basis justifying the connection made by the arbitrator between the
material properly available to him and the conclusion arrived at in
the form of his award. I make that assumption because it is the
assumption most favourable to the applicant in this case.
[6] In the documents which were furnished to the arbitrator and, in
particular, in a statement made by Mr Ndlovu but undated, which appears
at pages 33 to 41 of the papers, Mr Ndlovu gives details of his
accumulated grievances in regard to the question of promotion. It is
apparent from reading the statement that on a number of occasions he
was not promoted in circumstances where in his view the persons who
were appointed to particular posts lacked his qualifications, his abilities
and his length of service.
[7] The last promotion in regard to which he raises a complaint in that
document is an application which he made during July or
August 1995 for a post of Deputy Director. There are two letters in
these papers, the one of which records the receipt of his application
for that post and the other of which is a letter advising him that he
had not been appointed thereto. The latter letter is dated
4 March 1996.
[8] It is in my view clear from this that Mr Soni is correct when he
submits that whichever of these complaints formed the basis of the
reference to arbitration, it was a complaint which had arisen before
the Labour Relations Act came into force. As such it was not
appropriate or permissible for such complaint to be referred to
arbitration in terms of item 3.
[9] Be that as it may, however, it is clear from the arbitration award that
Mr Ngcobo approached the matter on the basis that Mr Ndlovu's
complaint relates to his nonappointment at the level of Deputy
Director in the Department. That is the question to which he
addressed his mind and that is the most favourable approach to the
application papers, from the point of view of Mr Ndlovu.
[10] In regard to that question Mr Ngcobo said the following and I quote:
"There is no doubt in my mind that the
applicant is eminently qualified for a senior
position in the ranks of Government. It is also
quite clear that he has rendered sterling service
to his employer. Is he, therefore, on the
aforementioned basis entitled to a senior
position? If indeed he is so entitled, does he
stand head and shoulders above everyone else
who is so qualified? There is no evidence to
persuade me that the answers to these two
questions should be in the affirmative.
Considering the applicant's stated intention to
obtain a severance package as far back as
1996, I question the wisdom of promoting him.
It appears to me that the clamour for a senior
post is intended to justify a demand for a more
generous severance package. It appears to
me that any employer who acts conservatively
in order to avoid being saddled with an
exhorbitant severance package is not
committing an unfair labour practice. Such
an employer, in my view, can legitimately claim
to be inspired by a desire for proper
governance. In sum, I am not convinced that
the respondent committed an unfair labour
practice in failing to promote the applicant. It is
nowhere evident that the applicant was entitled
to the promotion deserved. It is also not clear
that the successful applicants was or were not
more deserving than the applicant. No
evidence was led to show that the respondent
was capricious or arbitrary in its decision."
[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.
[12] The next hurdle is of equal if not greater importance. It is to show
that the decision to appoint someone else to the post in preference
to the complainant was unfair. That will almost invariably involve
comparing the qualities of the two candidates. Provided the
decision by the employer to appoint one in preference to the other
is rational it seems to me that no question of unfairness can arise.
[13] On the papers which are before me and which were before the
arbitrator, that question was hardly canvassed. Certainly no
evidential basis was placed before the arbitrator to suggest that in
relation to any of the appointments there was not proper reason for
the relevant departments to appoint the persons whom they chose
to appoint in preference to Mr Ndlovu. In the absence of such
evidence it is difficult to see how the arbitrator could have made a
finding in favour of the applicant.
[14] I also regard the arbitrator's comments in regard to a severance
package as being justifiable. The statement to which I have referred
included a very substantial claim in respect of a severance package. In
argument before me, Mr Ndlovu indicated that the claim was erroneously
calculated but he apparently did not indicate that to the arbitrator.
[15] As regards his position, he told me that if I granted the order which
he seeks, namely that he be promoted to the position of
Director, then such appointment would be one which in the
parlance of the public service would be an appointment to a post
"out of adjustment" and as a consequence Mr Ndlovu would then
qualify for a severance package. That package would be calculated
on the basis of his promotion post.
[16] As was stressed in the Carephone case, an application for review
under section 145 is not an opportunity to appeal from the decision
of the arbitrator to this Court. It is not open to this Court simply to
substitute its view of the merits of the matter for that of the
arbitrator. Such an approach would be wholly destructive of the
intended purpose of arbitration, namely that it should be expeditious
and, in general, not subject to judicial challenge.
[17] It is irrelevant whether I agree with the finding by the arbitrator. The
only thing that is relevant is that in the light of what I have said
earlier in this judgment it is manifest that there was a rational
objective basis connecting the evidential material placed before the
arbitrator with the decision at which the arbitrator arrived. That
being so, there is no basis upon which I am entitled to interfere with
the arbitration award.
[18] In those circumstances Mr Soni asked that the application be
dismissed and asked that the applicant be ordered to pay the costs
of the application. That is, of course, the usual order in the case of
ordinary disputes. In this Court there is long standing jurisprudence
to the effect that the Court must weigh up considerations of equity
in deciding whether or not to award costs against an unsuccessful
party.
[19] In doing so it must avoid making such stringent orders that it has a
chilling effect on the willingness of people to bring their grievances
to this Court. It is also well established that where there is a
continuing relationship between the parties, it is in general
undesirable to prejudice that relationship by making an adverse
order for costs.
[20] On the other hand, Mr Soni is quite correct in submitting that
Government Departments are particularly vulnerable to
unmeritorious litigation in pursuit of unsubstantiated grievances.
They employ a very large number of people. Indeed, it is probable
that collectively the Government is the largest employer in this
country. The salaries of those people and the costs of the
department in resisting unmeritorious litigation are paid out of the
public purse. In other words, the taxpayers have to bear those
costs.
[21] It is undesirable that the taxpayers should be burdened with
needless expense arising from unmeritorious litigation. There are
far more pressing things on which to spend the money raised by
taxation.
[22] Weighing all those factors up I am persuaded that this is a case so
lacking in merit that it would be inappropriate to penalise the public
purse by compelling the Respondent to pay the costs of the
litigation without any prospects of recovery.
[23] In the result the order that I make is that the application is
dismissed with costs.
WALLIS AJ