IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO JR393/2001
In the matter between:
CITY OF JOHANNESBURG (MIDRAND ADMINISTRATION) Applicant
and
M BEAN NO First Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL, GAUTENG
PROVINCIAL DIVISION Second Respondent
ID BEZUIDENHOUT Third Respondent
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JUDGMENT
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JAMMY AJ
1. In this application, brought in terms of Section 33 of the Arbitration Act 42
of 1965, read with the relevant provisions of the Labour Relations Act 66 of
1995 (“the Act”), the Applicant seeks an order reviewing, correcting and
setting side an award made by the First Respondent in arbitration
proceedings conducted by her under the auspices of the Second
Respondent. That award is dated 26 February 2001 and in terms thereof
the First Respondent held that the Applicant’s failure to appoint the Third
Respondent to the position of Project Manager was an unfair labour
practice. It is common cause that on 17 March 2001 and by way of a letter
telefaxed by her to the Trade Union of which the Third Respondent was a
member and copied to the Applicant’s attorney and to the Second
Respondent, the First Respondent conveyed what she referred to as
“clarification” of her award dated 26 February 2001 by the addition of the
following sentence:
“As a result of my finding that the employer committed an unfair labour
practice the Applicant is to be appointed retrospectively to the position of
Project Manager since the day he started acting in the post”.
2. The grounds of review submitted by the Applicant are, in essence, that the
First Respondent failed to apply her mind properly to the evidence before
her and failed to appreciate the nature and extent of her powers, duties
and responsibilities, thereby committing a gross irregularity as
contemplated by Section 33(1)(a)(b) of the Arbitration Act. The conclusion
reached by her, it is contended, cannot be regarded as justifiable in
relation to the reasons given for it and the First Respondent accordingly
exceeded her powers as contemplated by that Act read with Section 23(2),
33 and 195(1) of the Constitution and Section 6(2) of the Promotion of
Administrative Justice Act.
3. The Third Respondent, who is still in the employ of the Applicant, has held
the position of Recreation Officer at post level 6 in the Department:
Environment and Recreation Management, since 1 October 1993. In
March 1998 he was appointed as an Acting Project Manager, at a higher
post level, in a post which had at that stage not yet been formally created
but in respect of which, it is alleged, a proposal had been irregularly
submitted to the Applicant’s Council.
4. The process followed by the Third Respondent and the head of his
department in that context was to endeavour to have the Third
Respondent’s existing post upgraded to that of Project Manager. That
proved administratively not possible however and the Third Respondent
was informed that he would need formally to apply for the post only once it
had been created.
5. Albeit in what the Applicant submits was “circumvention of specific
procedural requirements”, the post of Project Manager in the Department:
Environment and Recreation Management, was thereafter created and in
May 1998 the Applicant advertised internally for applicants for that
position. The Third Respondent was one of a number of candidates who
applied, none of whom however was suitably qualified but of whom the
Third Respondent, following tests and an interview, was found to be the
most suitable. He was not however appointed to that position, the
Applicant’s Council exercising its prerogative not to make an appointment
but rather to convert the post from a permanent position to a contractual
one and to readvertise it on that basis. Inherent in the decision not to
appoint the Third Respondent was a funding factor, the alleged collusion
between the Third Respondent and his head of department to create the
post and reserve it for the Third Respondent and, in addition, an objection
to the Third Respondent’s appointment to the post which had been lodged
by the South African Municipal Workers Union and which was premised on
the Applicant’s employment equity programmes and what was alleged to
be the undue favouring of the Third Respondent in that context.
6. The consequent declaration of a dispute by the Third Respondent was
duly referred to the Second Respondent for conciliation, which proved
unsuccessful, resulting in the reference of the matter to arbitration under
its auspices, by the First Respondent. As has been stated, a finding of
unfair labour practice was made by the First Respondent followed by a
purported amendment which, in the Applicant’s submission, was “not in the
nature of a correction of a patent error or omission”.
7. I have no difficulty with the Applicant’s submission that the test to be
applied to reviews of awards in terms of the provisions of Section 33 of the
Arbitration Act are akin to those determined by the Labour Court in a
number of instances to be applicable to reviews in terms of Section 145 of
the Labour Relations Act. Simply stated, and has now been endorsed by
the Labour Appeal Court in
Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 9 BLLR
1011,
that test is one of “justifiability”, propounded in –
Carephone v Marcus and Others (1998) 11 BLLR 1093 (LAC)
and exhaustively examined and followed in a significant line of cases in
this Court.
8. A fundamental aspect of this application is a challenge to the jurisdiction of
the First Respondent to have heard the matter and her power to have
made the award which she handed down. The First Respondent however,
records the agreement between the parties stipulating her powers and her
terms of reference as follows:
“1. The Respondent’s failure to appoint (our member) Mr I D Bezuidenhout to
the position of Project Manager as the selected successful candidate by
the interview panel, without valid and substantiated reasons; and
2. The Respondent’s actions undermine sound labour practices within the
Local Government”. (sic)
That dispute, she determined,
“… does not relate to an unfair dismissal. Therefore, it would have to be
“classified” as an unfair labour practice dispute in terms of Schedule 7 of
the Act”.
That classification, the Applicant now contends, is incorrect and fatal to the
validity of the award. The dispute, it is submitted, does not relate to an
unfair labour practice as envisaged in the provisions of item 2(b) of
Schedule 7. Those are defined as –
“… any unfair act or omission that arises between an employer and an
employee, involving … the unfair conduct of the employer relating to the
promotion, demotion or training of an employee or relating to the
provisions of benefits to an employee”.
The dispute, the Applicant suggests, may have been one of unfair
discrimination and in that context capable of determination not by
arbitration but only by this Court.
9. It is common cause however that the Applicant agreed to argue the matter
on the basis that the dispute may have related to promotion, but this
notwithstanding, the Arbitrator, it is contended, failed to appreciate the true
nature of the dispute and therefore exceeded her powers in pursuing the
matter.
10. That contention is challenged, in my view with justification, by the Third
Respondent on the basis that it is irrelevant. The Third Respondent, it
contends, was dominus litis and decided to pursue his remedies under
Schedule 7 to the Act, the parties subsequently agreeing to that course of
action and thus to the nature of the dispute and the Second Respondent’s
jurisdiction to deal with it. The Third Respondent was at all relevant times
employed by the Applicant and what occurred in the process giving rise to
the dispute was a matter of internal administration. He was not a job
applicant, to whom the concepts of promotion, demotion, training or
benefits would have no application. Quite apart therefore from the
jurisdiction conferred on the First Respondent by agreement to deal with
the matter, her classification of the dispute as one falling within the ambit
of Schedule 7 of the Act is not open to question.
11. The Applicant has presented an exhaustive review of case authority
dealing with promotional disputes, emphasising the principle that unfair
conduct in that context can involve “a failure to meet objective standards”
and “arbitrary, capricious or inconsistent conduct”. Acknowledging the
concept of managerial prerogative, and the wide discretion vested in an
employer in that context, it argues for the right of the Applicant to have
made any appointment it deemed fit, to stop the recruitment process,
change the nature of the position and utilise an external process of
application in the prevailing circumstances and financial constraints to
which it was subject. Unfairness in that context, must extend not only to
the nonappointment of someone manifestly qualified for the position in
question but by the appointment of someone else in his or her stead. In
the present instance no one was appointed and that requirement was
therefore not satisfied. The relevant applicable principles in that context,
although argued before the First Respondent, were not applied by her, it
submits.
12. The Applicant proceeds thereafter to attack findings of credibility made by
the First Respondent and the disregard by her of evidence alleged to be
pertinent to the Applicant’s case. Her rejection of the evidence of specific
witnesses identified by her as being biased, untruthful and acting in bad
faith, “is unfounded and erroneous and constitutes an irregularity”. She
failed, it is alleged, to apply her mind to the facts and arguments set out in
heads of argument presented to her by the Applicant which negated any
suggestion of unfairness on its part and which were not addressed by the
First Respondent.
13. Finally and pertinently the relief which she purported to grant in the
subsequent telefax of 17 March 2001 was, it is submitted, grossly irregular
and in excess of her powers. In the first instance the order that the Third
Respondent be appointed to the position in which he had been acting
since the date he started acting in that post was not competent. At best for
the Third Respondent had his application been successful, he could only
have been appointed as at the date upon which it was considered. He
could not be retrospectively appointed to a post which, at the time that he
was acting in it, had not yet been formally created.
14. Secondly, once the First Respondent had handed down her award of
26 February 2001, she was functus officio in that that award was
“complete in all respects and disposed of all the matters in dispute” –
See Butler and Finsen : Arbitration in South Africa. p103
Section 30 of the Arbitration Act vests in an Arbitrator the power to correct
a clerical mistake or patent error arising from an accidental slip or omission
but, the applicant argues, none such existed in this instance. The
omission to specify the relief subsequently awarded by her did not
constitute a clerical mistake or patent error. It was an omission to grant
appropriate relief which could not be rectified by a subsequent ruling or
determination, requiring that the award be remitted back to the Arbitrator
for finalisation. Section 68(2)(f) of the Arbitration Act 1996 provides for the
remittal or review and setting aside of an award containing serious
irregularities and it is that relief for which the Third Respondent should, if
he believed that grounds existed for him to do so, have properly applied.
The First Respondent had no power to effect what was in essence an
The First Respondent had no power to effect what was in essence an
amendment to the award and in purporting to do so, she exceeded her
powers. Even had the Third Respondent adopted that course of action, it
would have been open to challenge by the Applicant on the basis that no
established grounds existed for such an order in the context of Section 32
of the Arbitration Act.
15. The heads of argument submitted by the Third Respondent’s
representatives to the First Respondent in the arbitration conclude with a
prayer that the Third Respondent “should be appointed in the position of
Project Manager which position still exists and which he still occupies”.
Conversely, specific relief in the form of an order that the Third
Respondent’s appointment as Acting Project Manager on a contractual
basis should immediately cease and that he should “be required to with
immediate effect revert to his former position of Recreation Officer” is
sought in the Applicant’s heads of argument to the First Respondent.
Neither form of relief was granted and this was a patent omission which, in
the subsequent telefax of 17 March 2001, the First Respondent sought to
address.
16. Section 30 of the Arbitration Act, as I have said, empowers an Arbitrator to
“correct in any award any clerical mistake or any patent error arising from
any accidental slip or omission”. The omission in question in this matter
constituted, in my view, a failure on her part to determine one of the issues
submitted to her in the form of the relief sought and rendered her award
incomplete in that context. She was not yet, in that context, functus officio
when she proceeded to do so in her subsequent augmentation of
17 March 2001. The sense and substance of her award as a whole was
not affected and the tenor of her judgment was preserved :
See Mervis Brothers v Interior Acoustics 1999(3) SA607 at 613
S v Wells 1990 (1) SA816 (AD) Firestone SA (Pty) Ltd v Genticuro
1977 (4) SA289 (A)
17. The award as at 26 February 2001 did not dispose of all matters in dispute
between the parties, of which the nature of any relief to which the Third
Respondent might be entitled was one, and as such was not complete.
The First Respondent was justified and entitled to address this omission as
she subsequently proceeded to do without thereby impugning the validity
of the award as a whole.
18. With regard to her assessment of the probative value or otherwise of the
evidence presented to her and her evaluation of the credibility or lack of it
of certain witnesses who testified in the hearing, the challenge mounted by
the Applicant would appear to be more the stuff of appeal than review.
The First Respondent, as is always the case where issues of credibility
arise, had the benefit of direct visual and aural evaluation of the witnesses
in question – the manner of the presentation of their testimony, their
demeanour in the witness chair, their reaction to crossexamination, and
so forth. Her evaluation of the substance of their evidence was
necessarily subjective and any differences of perception in that regard do
not constitute grounds for review.
19. There is furthermore no substance to the argument that unfairness on
the part of the applicant would necessarily involve the appointment of
someone else to the post in question. Whilst that might, all other elements
being present, have constituted unfair discrimination, it was neither alleged
nor pleaded in the circumstances of this case and is irrelevant to the basic
issue of unfairness in terms of item 2(b) of Schedule 7 of the Act upon
which the Third Respondent bases his claims.
20. I have considered the substance of the First Respondent’s award in the
light of the specific challenges mounted thereto by the Applicant and find
them to be unsustainable in the context of review. I can find no legitimate
or valid grounds to support the contention that any aspect of her conduct
of the hearing or her determination of the issues referred to her, merits
interference by this Court. She was entitled to determine the issues in
question on the evidence presented, both in the context of the substance
of that testimony and of the credibility of the witnesses who testified. In my
view there is nothing to support the contention that the findings made and
conclusions reached by her were either unreasonable or unjustifiable on
the conspectus of that evidence. The award, as I have stated, is not
subject to appeal and, for the reasons which I have stated, is not in my
view susceptible to review.
21. With regard however to the specific relief eventually granted by the First
Respondent, there is in my opinion merit in the Applicant’s contention that
the effective date of the retrospective appointment of the Third
Respondent to the position of Project Manager as ordered by the First
Respondent cannot be earlier than what would have been the date of such
appointment had his application been successful ab initio. That minor
adjustment however will not, to my mind, justify any variation in this
instance of the conventional principle that an award of costs in litigation of
this nature should follow the result.
22. For all of these reasons, the order that I make is the following:
22.1 The words “since the day he started acting in the post” in the First
Respondent’s telefaxed completion of her award on 17 March 2001, are
deleted and are replaced by the following:
“ with effect from what would have been the date of his
appointment as such had his application been successful ab
initio”
22.2 Save as provided for in 21.1 above, the application is dismissed.
22.3 The Applicant is to pay the Third Respondent’s costs.
___________________________
B M JAMMY
Acting Judge of the Labour Court
11 March 2002
Representation:
For the Applicant:
Mr J Olivier : Brink Cohen Le Roux & Roodt Inc.
For the Third Respondent
:
Mr H F Kocks: Kocks & Dreyer Attorneys